JUDGMENT N.K. Mehrotra, J.
1. Both the writ petitions relate to the promotion of the petitioner on the post of Assistant Director (Horticulture) in U.P. Avas Evam Vikas Parishad. Therefore, both these writ petitions are disposed of together by this judgment.
2. By means of Writ Petition No. 1570 (S/S) of 2002, the petitioner sought the relief by way of a writ in the nature of mandamus directing the opposite party Nos. 1 and 2 to send the name of the petitioner before the Departmental Promotion Committee scheduled to be held on 8.3.2002 for the promotion of the petitioner from the post of Horticulture Inspector to the Assistant Director (Horticulture) and to treat him senior to the opposite party No. 3 taking his ten years continuous service on the post of Horticulture Inspector and not to reject his candidature on the ground of non-completion of ten years service on the post of Horticulture Inspector in view of the decision of the opposite parties dated 18.4.2001 and 6.2.2002 in which the petitioner was declared senior most amongst of all the Horticulture Inspectors on the basis of the appointment made in the feeding cadre. On the basis of the interim orders of this Court in Writ Petition No. 1570 (S/S) of 2002 all the requisite papers relating to the petitioner were sent to the departmental promotion committee for considering his promotion but the departmental promotion committee did not consider him for promotion on the ground that he had not completed ten years requisite service on the post of Horticulture Inspector and the opposite party No. 3 who was junior to the petitioner was promoted.
3. After the promotion of the opposite party No. 3, the petitioner has filed Writ Petition No. 1953 (S/S) of 2003 for quashing the promotion order dated 25.1.2003 of Sri B.B. Tiwari, the opposite party No. 3 and for quashing the proceedings and recommendation of the Departmental Promotion Committee held on 20.1.2003. The petitioner also sought the relief by way of writ in the nature of mandamus directing the opposite parties to promote the petitioner on the post of Assistant Horticulture Director and to pay him salary in the promotional scale.
4. The facts of both the writ petitions are the same. According to the petitioner, he was selected on the post of Assistant Horticulture Inspector on 25.5.1978 and the opposite party No. 3 Brij Bhan Tiwari was appointed on the same post on 4.7.1980. It is alleged that at the time of appointment on the post of Assistant Horticulture Inspector, the opposite party No. 3 was not having required qualification of B.Sc. (Agriculture). The feeding cadre of the post of Inspector Horticulture is the cadre of Assistant Horticulture Inspector and for the promotion on the post of Assistant Director (Horticulture), the cadre of Inspector Horticulture is the feeding cadre. In the seniority list as contained in Annexure-3, the petitioner is a senior most Assistant Horticulture Inspector. It was issued on 6.2.2002. The services of the officers of the Horticulture department are governed by the U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Rules, 1999. In the rules there was a provision to fill up the post of Assistant Director (Horticulture) from the Horticulture Inspectors. The Horticulture Inspector possessing the graduate degree and having ten years continuous service in the cadre of Horticulture Inspector was eligible for promotion to the post of Assistant Director (Horticulture). The criteria for promotion was merit. These rules were amended on 24.12.2002. After the amendment, the only eligibility for promotion on the post of Assistant Director (Horticulture) is ten years continuous satisfactory service in the cadre of Horticulture Inspector. After amendment the criteria for promotion on the post of Assistant Director (Horticulture) is the seniority subject to rejection of unfit. The petitioner challenged Rule (3) of the Rules in Writ Petition No. 370 (S/B) of 2001 and recommendations of Departmental Promotion Committee dated 2.2.2001. These rules were amended on 24.12.2002. After the promotion of the opposite party No. 3, the petitioner had withdrawn that earlier Writ Petition No. 370 of 2001 (S/B). After the amendment in the rules by deleting the minimum qualification of graduation when the Departmental Promotion Committee was going to be held, the petitioner filed Writ Petition No. 1570 of 2002 (S/S) for directions to the opposite parties to consider his candidature for promotion after considering him Horticulture Inspector of ten years continuous service. It is after the promotion of the opposite party No. 3, the petitioner has filed Writ Petition No. 6062 (S/S) of 2003.
5. The case of the petitioner is that he possesses the degree of B.Sc. (Agriculture) from Kanpur University and he was appointed in the year 1978 on the post of Assistant Horticulture Inspector. On 25.6.1979, the Avas Evam Vikas Parishad took a decision for creation of Class II post of the Assistant Director (Horticulture).
It was decided that the said post may be filled up by taking some incumbent on deputation from the Agriculture Department of the U.P. Government and if, suitable incumbent may not be available by deputation, then the incumbent possessing equal qualification may be appointed.
According to the petitioner, the minimum educational qualification in the Horticulture Department of the Government in B.Sc. (Agriculture) as provided in the U.P. Horticulture Department Subordinate Service Rules, 1993. It is further alleged that at the time of appointment of the petitioner on the post of Assistant Inspector (Horticulture) the minimum qualification B.Sc. (Agriculture) was required in the advertisement. The opposite party No. 3 was appointed in the year 1980 when he was not having the qualification for the post of Assistant Horticulture Inspector as he was simply Graduate. The petitioner has filed the copies of the annual entries to show that he has excellent remarks in his character role. In the year 1986-87, an adverse entry was given to the petitioner. The petitioner represented against that entry. In the meantime when the representation against the adverse entry was pending, the opposite parties made promotion on the post of Horticulture Inspector and the opposite party No. 3 B.B. Tiwari was promoted after ignoring the claim of the petitioner although, the representation against adverse entry was pending, When the Departmental Promotion Committee was going to be held for the post of Assistant Director (Horticulture) by promotion on 2.2.2001, the petitioner filed Writ Petition No. 370 (S/B) of 2001 challenging the recommendations of the Departmental Promotion Committee and the rules which provide for eligibility. It appears that the recommendations of the Departmental Promotion Committee held on 2.2.2001 on the post of Assistant Director (Horticulture) were not implemented. The representation of the petitioner against adverse entry was rejected but subsequently on 6.5.1991 after the promotion of the opposite party No. 3 on the post of Horticulture Inspector, the representation of the petitioner against the adverse entry was allowed. The adverse entry was expunged. Later on, he was given the entire seniority above the opposite party No. 3 B.B. Tiwari in the scale of Horticulture Inspector also. The petitioner was given promotion on the post of Horticulture Inspector with effect from 7.5.1993. According to the petitioner after expunging the adverse entry, all the benefits of seniority and pay, etc. from the date of his junior, the opposite party No. 3 have been given but at the time of meeting of Departmental Promotion Committee in January, 2003, he was not considered for promotion on the post of Assistant Director (Horticulture) on the ground that he had not completed ten years service on the post of Horticulture Inspector. The case of the petitioner is that his ten years service should also be counted from the date his junior was promoted in the year 1991 and his claim for promotion on the post of Horticulture Inspector was ignored because of the adverse entry which was later on expunged.
6. The opposite party Nos. 1 and 2 have filed the counter-affidavit contending that the petitioner was considered for promotion on the post of Assistant Director (Horticulture) in the Departmental Promotion Committee convened on 20.1.2003 and he was not promoted because it was found by the committee that the petitioner had not completed ten years service as Horticulture Inspector. The petitioner was not having the required experience, hence he was not promoted on the post of Assistant Director (Horticulture). It was also stated by the opposite party Nos. 1 and 2 that at the time of Initial appointment on the post of Assistant Director (Horticulture), the minimum required qualification was Intermediate (Agriculture). The petitioner was promoted on the post of Horticulture Inspector on 14.5.1993 and the opposite party No. 3 was promoted on the said post on 11.4.1991. It is admitted that the adverse remarks have been expunged after taking into consideration the representation of the petitioner. It is also contended that the petitioner shall be considered for promotion on the post of Assistant Director (Horticulture), whenever post is available after completion of ten years service of the petitioner on the post of Horticulture Inspector. It is also contended that under the U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Regulation, 1999, the seniority is not the only criteria for promotion but ten years continuous satisfactory service on the post of Horticulture Inspector was also required.
7. The opposite party No. 3 has also filed a counter-affidavit. It has been contended by the opposite party No. 3 that the petitioner challenged the vires of the original service regulations in Writ Petition No. 370 (S/B) of 2001 while the said Regulations of 1999 have been amended by U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Regulation, 2002 notified on 24.11.2002, which has not been challenged. Therefore, the petitioner is not entitled to get any relief unless the vires of the rules is finally adjudicated. Further it is contended that this writ petition is not maintainable in view of the earlier pending writ petition. It is also contended that the minimum qualification for the post of Assistant Inspector Horticulture was Intermediate in the year 1980 when the opposite party No. 3 was appointed on the post of Assistant Horticulture Inspector, there were no rules available in the Avas Evam Vikas Parishad laying down the conditions of service and recruitment. At that time the rules applicable in the agriculture department of the State of U. P. were followed and the post of Assistant Horticulture Inspector was governed by the rules regulating appointment and conditions of service of Subordinate Agriculture Service notified on 8.3.1935. The copy of which is Annexure C-2. The qualification for recruitment to Group-III posts in this rule is Intermediate examination in agriculture or a diploma in agriculture, which was possessed by the opposite party No. 3 at the time of his appointment on the post of Assistant Horticulture Inspector. The opposite party No. 3 has also pleaded that the petitioner was not only ineligible for the post of Assistant Director (Horticulture) but he has also been held to be inferior in merit. At the time of promotion of the opposite party No. 3 on the post of Horticulture Inspector, one Gaya Prasad was also promoted on the post of Horticulture Inspector in April, 1991. The opposite party No. 3 and Gaya Prasad both are adversely affected by expunging the adverse entry and according seniority to the petitioner on the post of Horticulture Inspector. No opportunity of being heard was given to the opposite party No. 3 at the time of expunction of the adverse remarks of the petitioner by order dated 28.6.1991. In case the matter relating to suppression of the petitioner for promotion to the post of Horticulture Inspector is considered and the petitioner is given seniority, the opposite party No. 3 has a right to challenge the validity of such action. The petitioner made no representation for promoting him on the post of Horticulture Inspector retrospectively from the date of promotion of the answering opposite party No. 3 but be only desired the fixation of seniority according to his position in the cadre of Assistant Horticulture Inspector, which too was not admissible looking to the provisions relating to seniority contained in U.P. Avas Evam Vikas Parishad Assistant Horticulture Inspector and Horticulture Inspector Service Rules, 1999. The petitioner was never given notional promotion with effect from 11.4.1991. According to the opposite party No. 3 even after getting the seniority or notional promotion from the post of Horticulture Inspector, the petitioner cannot be said to have the minimum required experience on the post of Horticulture Inspector acquiring eligibility for promotion on the post of Assistant Director Horticulture.
8. After hearing the learned cdunsel for the parties, I find that the post of Assistant Director (Horticulture) was created in the year 1971 vide resolution as contained in Annexure-4. It was resolved by U.P. Avas Evam Vikas Parishad that a post of Assistant Director (Horticulture) be created and it be filled in by taking some incumbent on deputation on the agricultural department of the U. P. Government and in case the officer of the Agriculture department is not available then, the officer having equivalent qualification should be appointed on this post. Subsequently, the U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Regulation, 1999 were promulgated. The Departmental Promotional Committee was held on 2.2.2001 for selection on the post of Assistant Director (Horticulture) on the basis of the Rules 1999. At that time when the earlier Departmental Promotional Committee took place on 2.2.2001, the eligibility criteria was as follows :
"1. A Graduate degree of any recognised University.
2. Ten years continuous service in the cadre of Horticulture Inspector."
9. The criteria for promotion was merit. Admittedly the opposite party No. 3 was not having the qualification of Degree in Agriculture. It appears that in order to fill up this post from existing Horticulture Inspectors working in U.P. Avas Evam Vikas Parishad, these rules were amended on 24.12.2002 as contained in Annexure-C.1. The amended eligibility criteria is as follows :
(1) Ten years continuous satisfactory service in the cadre of Horticulture Inspector.
Note : The criteria of promotion and seniority subject to rejection of unfit.
10. The opposite party Nos. 1 and 2 have not given any justification for deleting the minimum qualification of graduation in the rules by amendment on 24.12.2002. It appears that a proposal was made that the opposite party No. 6 may be made eligible for the post of Assistant Director (Horticulture) because he was not having graduate degree in Agriculture.
11. Now the relevant question is as to whether the candidature of the petitioner could be rejected on the ground that he was not fit having ten years' service on the post of Horticulture Inspector on the date of meeting of the Departmental Promotion Committee.
12. The post in question on which the petitioner claims his promotion is the post of Assistant Director (Horticulture) in U.P. Avas Evam Vikas Parishad. The Departmental Promotion Committee for the impugned selection took place on 20.1.2003. Initially the service rules for dealing with recruitment and service conditions were framed in the year 1999 known as U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Regulations, 1999 (hereinafter to be referred as 'Regulation') which were framed under Section 95 of the U. P. Avas Evam Vikas Parishad, Act, 1965. Regulation 7 (3) prescribes the eligibility criteria which is as follows :
(1) Graduate degree from any recognised University.
(2) Ten years continuous service in the cadre of Horticulture Inspector.
These regulations were amended on 24.12.2002, After the amendment Regulation 7 (3) is as follows :
(1) Ten years continuous satisfactory service in the cadre of Horticulture Inspector.
13. Before the amendment on 24.12.2002, the criteria for promotion was strictly on merit. After the amendment the criteria for promotion is seniority subject to rejection of unfit.
14. The Departmental Promotional Committee has rejected the candidature of the petitioner on the ground that the petitioner has not completed ten years satisfactory service on the post of Horticulture Inspector while the Regulation 7 requires ten years satisfactory service in the "cadre of Horticulture Inspector". There is a difference in the phrase "ten years experience on the post of Horticulture Inspector" and the phrase "ten years satisfactory service in the cadre of Horticulture Inspector". For this purpose it is to be seen as to whether the cadre of Horticulture Inspector includes Horticulture Inspector and Assistant Horticulture Inspector both or not? In the State of Maharashtra v. Purushottam and Ors., JT 1996 (6) SC 672 word 'Cadre' has been interpreted. It has been held that the cadre in service law jurisprudence means the unit of strength of a service or a part of it as determined by the employer. In U.P. Avas Evam Vikas Parishad Assistant Horticulture Inspector and Horticulture Inspector Service Regulations it has to be seen as to whether the cadre includes the entire strength of the service or part of it. The Regulation hereinafter referred to will make it clear that in the said regulations 'cadre' consists of entire strength of service.
15. For this purpose I refer U.P. Avas Evam Vikas Parishad Assistant Horticulture Inspector and Horticulture Inspector Service Regulations, 1999.
16. The 'member of service' is defined in Regulation 3 (10) of these Regulations. It means any person appointed on any post in the cadre of service :
'Service' is defined in Regulation 3 (11). It means Horticulture Inspector serving under Assistant Director (Horticulture). Here, I make it clear that both the posts of Assistant Horticulture Inspector and Horticulture Inspector are included in the cadre of the service as defined in these Regulations. Both the posts are under the Assistant Director (Horticulture).
17. I further refer Regulation 5 of these Regulations which gives the detail of the names of the posts, namely ;
18. The aforesaid definition in the U.P. Avas Evam Vikas Parishad Assistant Horticulture Inspector and Horticulture Inspector Service Regulations makes it clear that there are two services relating to the work of Horticulture in U.P. Avas Evam Vikas Parishad. The first service is known as Assistant Director (Horticulture) service and the second service is known as Horticulture Inspector service under Assistant Director (Horticulture). It makes it clear that in the Horticulture Inspector service there is one cadre consisting of two types of posts, namely ; Assistant Inspector (Horticulture) and Inspector Horticulture. Therefore, the Horticulture Inspector cadre includes Assistant Inspector (Horticulture) and the Inspector Horticulture both. For the purpose of interpretation of the amended Regulation 7 (3) of the Regulations relating to the service of Assistant Director (Horticulture), I hold that ten years satisfactory service in the cadre of Horticulture Inspector includes the total service in the Horticulture Inspector service. It is not denied that the petitioner joined as Assistant Horticulture Inspector in the service of U.P. Avas Evam Vikas Parishad on 25.5.1978. The Departmental Promotion Committee took place on 20.1.2003. On that date the petitioner had completed 22 years of service in the "cadre of Horticulture Inspector service" while the Departmental Promotion Committee has taken into consideration the services of the petitioner on the post of Horticulture Inspector only which is not correct and the proceedings of the Departmental Promotion Committee are required to be quashed only on this ground.
19. After promulgation of the regulation relating to Assistant Director (Horticulture) service, the opposite parties held a Departmental Promotion Committee on 2.2.2001 when the petitioner challenged this Departmental Promotion Committee dated 2.2.2001 in Writ Petition No. 370 (S/B) of 2001 on the ground that the opposite party No. 3 B.B. Tiwari was not eligible for the post of Assistant Director (Horticulture) and he was holding B.A. (Art) certificate only and at that time the prescribed qualification for the post of Assistant Director (Horticulture) is graduation of any recognised University. At the same time the petitioner had challenged the initially framed Regulation of Assistant Director (Horticulture) service, Instead of declaring the result on the basis of the Departmental Promotional Committee dated 2.2.2001, the opposite parties amended U.P. Avas Evam Vikas Parishad Assistant Director (Horticulture) Service Regulation, 1999 and deleted the required qualification of being graduate. After this amendment, the impugned Departmental Promotion Committee was held. It is obvious that the amendment was carried out for some motive to help those who are not having graduate qualification. While in U.P. Avas Evam Vikas Parishad, the Assistant Horticulture Inspector and Horticulture Inspector Service Regulations still the minimum qualification is graduate (Agriculture) for the post of Assistant Inspector Horticulture.
20. Further, I find that the petitioner was given an adverse entry on 1.4.1986 in the year 1986-87 by withholding the integrity certificate. The petitioner made representation against this adverse entry. That representation was pending and without deciding the representation a selection took place for promotion on the post of Horticulture Inspector on 11.4.1991 and as the opposite party No. 3 B. B. Tiwari being senior most was promoted on the post of Horticulture Inspector by order dated 11.4.1991. Subsequently, the representation of the petitioner was allowed and the adverse entry was expunged on 28.6.1991 and afterwards the petitioner was promoted on the post of Horticulture Inspector on 7.5.1993 vide Annexure-11. The petitioner made representation for his promotion from the date of his juniors on 26.2.1994 and 28.10.1999 as contained in Annexures -12, 13 and 14. The Additional Housing Commissioner and Secretary allowed the benefit of inter-se seniority in the cadre of Horticulture Inspector with reference to the date of appointment of the petitioner in feeding cadre on 3.2.2000 vide order as contained in Annexure-15. So with effect from 3.2.2000, the petitioner has been declared senior to the opposite party No. 3.
21. A perusal of the U.P. Avas Evam Vikas Parishad Assistant Horticulture Inspector and Horticulture Inspector Service Regulations, 1999 provide that the promotion on the post of Horticulture Inspector shall be made on the basis of seniority from the post of Assistant Inspector (Horticulture). Therefore, prima facie, it appears that the petitioner being senior to the opposite party No. 3 is entitled to promotion on the post of the Horticulture Inspector on the basis of his seniority from the date his junior B. B. Tiwari was promoted. The learned counsel for the petitioner has referred Pilla. Sita Ram Patrudu and Ors. v. Union of India and Ors., (1996) 8 SCC 637, in which it was held that the direct recruited person whose appointment was delayed for no fault on his part due to laches on the part of the department, he is entitled to relaxation for computing 8 years service for further promotion. The learned counsel for the petitioner has further referred U.P. Jai Nigam v. S.C. Atri and Anr., AIR 1999 SC 3362, in which it was held on the basis of the regulation available in U.P. Jal Nigam that the senior person promoted subsequently shall be entitled to reckon his seniority with effect from the date on which person junior to him was promoted. In the instant case, I find that the promotion on the post of Horticulture Inspector in April, 1991 was made after ignoring the claim of the petitioner and without deciding his representation against adverse entry. I further find that his entire service of the cadre of Horticulture Inspector including the service on the post of Assistant Inspector has not been taken into consideration arbitrarily.
22. In U.P. Avas Evam Vikas Parishad Assistant Director Service Regulation, 1993 also there is Regulation No. 23 which authorises the competent authority for granting relaxation from application of any regulation in order to mitigate the hardship in such circumstance but the opposite party Nos. 1 and 2 have not considered to mitigate this hardship to the petitioner by granting relaxation.
23. The learned counsel for the opposite parties have argued that the petitioner cannot be considered for promotion on the post of Assistant Director (Horticulture) unless he fulfils the requirement of eligibility as provided in Regulation 7 (3) of the Regulations relating to the service of the Assistant Director. I find no force in this contention because ten years continuous service on the post of Horticulture Inspector alone is not required but ten years service in the cadre of Horticulture Inspector is required which is fulfilled by the petitioner by computing his service of the entire Horticulture Inspector's service.
24. The learned counsel for the opposite parties have also argued that these writ petitions are not maintainable because the petitioner has withdrawn Writ Petition No. 370 (S/B) of 2001 in which he had challenged the vires of the Service Regulations and no liberty was given to the petitioner to file a fresh writ petition. I find that this argument has no force because in the earlier writ petition, the petitioner has challenged the Departmental Promotion Committee dated 2.2.2001 and the initial Regulation of Assistant Director Service while in the instant Writ Petition No. 6062 (S/S) of 2003, he has challenged the Departmental Promotion Committee dated 20.1.2003 and in this writ petition he has not challenged the vires of Regulations of 1999. In my opinion, he fulfils the eligibility criteria in accordance with the existing regulations before the amendment and after the amendment both. Therefore, the instant writ petition is maintainable.
25. The learned counsel for the opposite party No. 3 has also referred the State of Madhya Pradesh v. Laxmi Shanaker Mishra, 1979 SCC (L&S) 153 and Ram Swamp v. State of Haryana, 1979 SCC (L&S) 35, to show that the petitioner must have fulfilled the condition of eligibility relating to the requisite experience. This law will not apply in this case because the petitioner possesses 22 years experience in Horticulture Inspector cadre as stated above.
26. The learned counsel for the opposite party No. 3 has also referred Gur Charan Lal Srivastava v. Hindustan Aeronautics Ltd., 2001 (3) UPLBEC (All-DB) 2365 and Shyam Narain Dwivedi v. State of U.P., 1999 (1) UPLBEC 513 (All), to argue that the second writ petition is not maintainable because no liberty was granted at the time of withdrawal of the first writ petition. In my opinion, the opposite party No. 3 is not able to get any advantage of these two writ petitions because the subsequent writ has been filed on fresh cause of action.
27. In view of above, both the Writ Petition Nos. 1570 (S/S) of 2002 and 6062 (S/S) of 2003 are allowed. The proceedings of the Departmental Promotion Committee held on 20.1.2003 with regard to the selection for the post of the Assistant Director (Horticulture) and the consequent result in giving appointment to the opposite party No. 3 on the said post are quashed with the directions to the opposite party Nos. 1 and 2 to hold fresh Departmental Promotion Committee for promotion on the post of Assistant Director (Horticulture) after computing the experience of all the candidates of the entire period of Horticulture Inspector cadre including the service on the post of Assistant Inspector (Horticulture) and Inspector (Horticulture) within a period of one month.