The present petition has been filed by the petitioners seeking following reliefs:-
i) issue a writ order or direction including a writ in the nature of certiorari quashing the order dated 31.10.1996 (Annexure No.13 to the writ petition) and order dated 30.5.1996 (Annexure No.12 to the writ petition) passed by respondent no.1.
ii) issue a writ, order or direction including a writ in the nature of mandamus commanding the respondent no.1 not to make any recovery from the salary of the petitioners.
The averments as stated leading to the filing of the present petition, in brief, are as under:-
The petitioner no.1 was appointed on ad-hoc basis against a temporary post of Stenographer on 2.4.1979 and continued as such till his regularisation, the petitioner nos.2,3 & 4 were also appointed on the post of Stenographer (Hindi) on ad-hoc basis against clear vacancy on 21.4.1980 and continued as such till their regularisation. It is also alleged that the respondent no.2, Rajendra Kumar Gupta was appointed as an approved candidate for the post of officiating Paid Apprentice of District Judge's Court on 6.11.1973. He worked in various capacities since then, and on 20.4.1979 he was posted as Stenographer to the Civil Judge, Budaun but, his substantive appointment remained as Copyist which is a lower post on temporary basis. The petitioner no.1 was confirmed on the post of Stenographer on 11.2.1987 with immediate effect on the temporary post being made permanent whereas the petitioner nos.2,3 & 4 were confirmed on 6.1.1990 with immediate effect. The services of the respondent no.2 were confirmed with retrospective effect on 27.7.1993. A dispute arose in between the petitioners and the respondent no.2 with regard to their inter se seniority. The competent authority took cognizance of the inter se seniority dispute called for a report and the First Additional District Judge, Budaun submitted a report on 23.10.1989 recommending to place the petitioner no.1 above the respondent no.2 vide his report dated 23.10.1989. The respondent no.2 filed his objections against the report dated 23.10.1989 and on the said objections another report was called by the District Judge, Budaun. The Third Additional District & Sessions Judge, Budaun submitted another report on 19.5.1991 agreeing with the earlier report dated 23.10.1989, the District Judge, Budaun relying upon the aforesaid reports dated 23.10.1989 and 19.5.1991 determined the seniority dispute holding that the petitioner no.1 to be senior vide his order dated 3.6.1991 (Annexure No.6 to the writ petition). The said order dated 3.6.1991 was challenged by the respondent no.2 by filing a writ petition before this Court being Writ A No.14497 of 1992 (Rajendra Kumar Gupta Vs. District Judge and others) which was subsequently dismissed as having become infructuous. The respondent no.2 also raised seniority dispute between the petitioner nos. 2,3 & 4 on one hand and the respondent no.2 on the other hand and on his objections the District Judge, Budaun constituted a Team of two Additional District Judges to enquire and submit a report with regard to the inter se seniority of the petitioner nos. 2, 3 & 4 and the respondent no.2. The said Team submitted a report on 8.9.1993 recommending therein to place the petitioners no. 2,3 & 4 above the respondent no.2 in the seniority list, the District Judge, Budaun agreeing with the report dated 8.9.1993 accepted the same and passed an order on 9.9.1993 and the petitioners no. 2,3 & 4 were held to be senior to the respondent no.2.
In terms of the said decision dated 9.9.1993, the seniority dispute came to an end and the salary of the petitioners were fixed accordingly. The respondent no.2 aggrieved against the said decision again agitated the matter for re-fixing the inter se seniority and the District Judge, Budaun vide his order dated 30.5.1996 held the respondent no.2 to be senior to the petitioners on the ground that the regularisation of the respondent no.2 was with retrospective effect and as such the respondent no.2 was senior to the petitioners. The said order dated 30.5.1996 has been filed as Annexure No.12 to the writ petition. The petitioners moved an application before the District Judge, Budaun for reviewing the order dated 30.5.1996, however, their representation was rejected vide order dated 31.10.1996 (Annexure No.13 to the writ petition). The present petition challenges the order dated 30.5.1996 as well as the order dated 31.10.1996.
We have heard Sri R.C. Singh, learned Senior Advocate, appearing on behalf of the petitioners as well as Sri Ashish Mishra, counsel for respondent no.1.
Sri R.C. Singh, Senior Advocate submits that the services of the petitioners and the respondent no.2 are governed by the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as 1947 Rules) and rule 19 of the said Rules clearly provides for determination of seniority. He has further argued that the functioning of the petitioners on ad-hoc basis has not been considered while fixing the seniority and merely because the respondent no.2 was confirmed with retrospective effect, the ad-hoc functioning of the petitioners cannot be ignored and if working of the petitioners on ad-hoc basis is taken into account, the petitioners are senior to the respondent no.2 and it is this aspect of the matter that the District Judge, Budaun has not taken into account while passing the impugned order.
Sri R.C. Singh, Advocate has relied upon the following judgements:-
i) State of Haryana and others Vs. Vijay Singh and others, A.I.R. 2012 S.C. 2901.
ii) Dr. Chandra Prakash and others Vs. State of U.P. And others, AIR 2003 S.C. 588,
iii) T. Vijayan and others Vs. Divisional Railway Manager and others, AIR 2000 S.C. 1766,
iv) Ajit Kumar Rath Vs. State of Orrisa, AIR 2000 S.C. 85,
v) The Direct Recruits Class II Engineer Association Vs. State of Maharashtra, A.I.R. 1999 S.C. 1607,
vi) G.C. Gupta Vs. N.K. Pandey, A.I.R. 1998 S.C. 268.
He has further argued that the seniority dispute was already finally decided vide order dated 3/4.6.1991 and 9.9.1993 and the same could not have been reopened as no power of review is conferred on the District Judge, therefore, the order impugned is bad on that count also.
Sri Ashish Mishra, Advocate has on the other hand submitted that the order whereby the respondent no.2 was regularised with retrospective effect has not been challenged in the present petition and further it has been submitted that the petitioners as well as respondent have already superannuated from their service as such the present petition has become infructuous by efflux of time. He further argued that the confirmation of the respondent no.2 was done from the date of his substantive appointment on the post in question, i.e. on 16.9.1981 whereas the petitioners were appointed from the date of confirmation orders as the post on which they were working was not substantive and the same was created from the date of their confirmation. He thus, confines his submission on the ground that confirmation order not being challenged in the present writ petition as well as the petitioners and respondent no.2 having superannuated as such the writ petition is liable to be dismissed.
Considering the averments made at the bar, this Court is called upon to decide whether the fixation of the inter se seniority vide order dated 30.5.1996 was just and legal.
The Position as emerges with regard to the facts of the initial appointments and the confirmations of the petitioners and the respondent no.4, is as under:-
Petitioner no.1 Petitioner no.2 Petitioner no.3 Petitioner no.4 Respondent no.4 Initial appointments 02/04/79 Temporary post 21.1.1980 Temporary post 21.1.1980 Temporary post 01/05/81 Temporary post Working as Copyist since 22.11.1974. Joined on 16.9.1981 as Typist.
Confirmation 11/02/87 06/01/90 06/01/90 06/01/90 27.7.1993 with retrospective effect It is not disputed that the service conditions of the petitioners as well as the respondent no.2 at that point in time were governed by the Subordinate Civil Courts Ministerial Establishment Rules, 1947. Rule 19 of 1947 Rules provides for manner of determination of seniority and is quoted as under:-
"Seniority in service, for the purpose of promotion shall ordinarily be determined from the date of the order of confirmation in the grade and if such date is the same in the case of more than one person than according to their respective position in the next lower grade or the register of recruited candidate in the case of person confirmed in the lowest grade."
Thus, what is to be considered in the present case is as to how the seniority of the petitioners and the respondent no.4 is to be determined in consonance with Rule 19 of the said 1947 Rules and it is important to understand the import of the word 'ordinarily' used in Rule 19 of the said 1947 Rules.
Rule 19 of 1947 Rules was considered by this Court in the judgement delivered in the case of Dileep Kumar Srivastava Vs. State of U.P. (2010) 6 All. L.J. 474 and the Court observed as under:-
"The rule 19 provides that seniority in service for the purpose of promotion shall be ordinarily determined from the date of confirmation. Word "ordinarily" came for consideration before the apex Court and this Court on several occasions. The appellant himself has placed reliance on the judgement of the apex Court in AIR 1961 S.C. 1346 Kailash Chand Vs. Union of India. The Apex Court was considering the provisions of Railway Establishment Code Rules 2046(2) (a) where the words "should ordinarily be retained" were used. While considering the meaning of word "ordinarily", the apex Court laid down following in paragraph 8:
"(8) This intention is made even more clear and beyond, doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient."
Word "ordinarily" came for consideration before this Court in Lalit Mohan Vs. Secretary/General Manager, Distt. Co-op. Bank, Varanasi (1995)1 LBESR 298. The Court was considering Regulation 85 (x) of U.P. Cooperative Society Employees Service Regulation 1975, which provides that no employee shall ordinarily remain under suspension for more than six months. Following was laid down in paragraph 9:
"9. The learned counsel for the respondents referred to various cases including the case of Kailash Chandra v. The Union of India 1961 (3) FLR 379 (SC), Nirmal Chand Jain v. The District Magistrate, Jabalpur and Anr. AIR 1976 MP 95, Krishan Dayal and Ors. v. General Manager, Northern Railway AIR 1954 Punjab 245 and the Full Bench in the case of AM. Patroni and Anr. v. E.C. Kesavan AIR 1965 Ker.75. In the said cases, the use of the word 'ordinarily' in various statutes and its implications have been considered. Considering the law laid down in the said cases and the meaning of the word 'ordinarily' as given in various Dictionaries it seems that the word 'ordinarily' means in the majority of cases but not invariably. Agreeing with the said view I feel that in the present rule also the word 'ordinarily' means majority of cases unless there are special circumstances."
From the above decision, it is clear that the word "ordinarily" means majority of cases unless there are special circumstances. In the present case, Administrative Judge, while considering the inter-se seniority between the parties has taken the view that rule 19 uses the word "ordinarily" which is applicable only to those cases where the persons appointed in a cadre or confirmed or to completion of probation without any discrimination or a person coming from outside the cadre and joining service with different attributes of confirmation. Following was the observations made by the Administrative Judge in his order dated 23.1.2006:
"The confirmation is an inglorious uncertainty. The counting of seniority from the date of confirmation leaves him at the whim of the appointment authority, who may confirm or delay the confirmation of a particular employee to give undue benefit to a favour employees. Once an employee is confirmed on a substantive post his seniority must be reckoned from the date he was substantially appointed on the post. Rule 19 as such rightly refers to word "ordinarily" and is applicable only to those cases where the persons appointed in a cadre or confirmed or to completion of probation without any discrimination or a person coming from outside the cadre and joining service with different attributes of confirmation."
In the present case while dealing with the objections of Sri R.K. Gupta, in the report dated 19.5.1991, the Presiding Officer had repelled the arguments of the respondent no.4 to the effect that the petitioners were appointed on the temporary posts of Stenographers which were created by the Government for the Courts of Munsif Magistrates and the Chief Judicial Magistrates in 1979, holding that whether the appointment was against a temporary vacancy or against a permanent vacancy, the fact is that both the persons were appointed as Stenographers in the Pay Scale of Rs. 250-425 and their being no separate cadre for the Stenographers appointed against a substantive vacancy as opposed by Stenographers against a temporary vacancy. Thus, the seniority was fixed giving the benefit of service from the date of initial joining on the post of Stenographers and the petitioners were placed higher than the respondent no.4. The said seniority list was upset only on literal interpretation of Rule 19 of 1947 Rules and was determined from the date of order of confirmation, in the case of respondent no.4 the confirmation being with retrospective effect, he was held to be senior to the petitioners, although the admitted position is that the petitioners were working as Stenographers from a date prior to the working of the respondent no.4 as a Stenographer.
Thus, in this case what is to be considered is whether the services rendered from the date of initial appointment should be considered for determining the seniority or adopting literal interpretation of Rule 19 of 1947 Rules, the seniority should be determined from the date of the order of confirmation and the word ordinarily used in the Rule 19 of 1947 Rules should be completely overlooked. This question of interpretation of the word 'ordinarily' has already been dealt with in the judgement of Dileep Kumar Srivastava Vs. State of U.P. (supra). The Division Bench also considered whether there was any exceptional circumstance due to which the confirmation in service could not be taken as basis, rather length of service be taken as basis from determination of seniority. The Division Bench while considering whether any exceptional circumstances existed to take the length of service as basis for determination of seniority instead of confirmation in service, held as under:-
The question to be considered is as to whether there was any exceptional circumstance in the present case due to which the confirmation in service could not be taken as basis rather length of service be taken as basis for determination of seniority. There is no dispute that the respondent no. 4 was appointed earlier to the appellant and he was transferred to Allahabad on 11.4.1974. The confirmation of the appellant was made at Mirzapur on 30.4.1983 and after his confirmation he was transferred to Allahabad on 1.10.1984. The respondent no. 4, who was transferred to Allahabad in 1974 itself continued awaiting his confirmation which was done only on 1.2.1985. There is nothing on record to indicate that at any point of time, earlier to 1.2.1985, the respondent no. 4 was considered for confirmation and was not found fit. The appellant was appointed at judgeship of Mirzapur and was confirmed in the Mirzapur Judgeship, whereas the respondent no. 4 and the employee even appointed earlier to him i.e. respondent no. 7, who was appointed as early as in 1967, were not confirmed till 1.2.1985. The present is not a case where confirmation of all the employees was taken at Allahabad. At Allahabad, the confirmation was made with great delay in the year 1985 of the respondent no. 4, who was transferred and working at Allahabad from 11.4.1974 i.e. after more than a decade, which was special feature on the basis of which Administrative Judge did not refer to or relied the determination of seniority on the basis of confirmation. The Administrative Judge has rightly held that a person with different attribute of confirmation cannot contend that error was committed in not relying on criteria of confirmation as provided under Rule 19. Rule 19 does not mandatorily provides that confirmation in service, in all cases has to be the basis for determination of seniority. It uses the word "ordinarily" which gives a flexibility and in a case where there are certain special circumstances, the criteria other than the confirmation can be adopted by the appointing authority, for determination of seniority. In the present case, the appellant was confirmed at Mirzapur judgeship where he was appointed and the respondent no. 4, who was appointed earlier to appellant at Mirzapur itself and transferred to Allahabad in the year 1974, waited for his confirmation more than a decade, which ultimately was done on 1.2.1985. The reliance on the length of service by the appointing authority cannot be said to be arbitrary or beyond the scope of Rule 19. Thus, Rule 19 itself permits in exceptional cases to rely on criteria other than confirmation and in the facts of the present case, we are satisfied that substantial justice has been done in determination of seniority of petitioner and the respondent no. 4, on the basis of length of service."
Coming to the circumstances which lead to the appointments of the petitioners and the respondent no.4 as culled out from the pleadings on record, are that some 242 temporary posts were created for the appointment of Hindi Stenographers to the Courts of Munsif Magistrates in the Pay Scale of Rs.250-425 and on the said posts, appointments were made and they started working with effect from 2.4.1979 (in respect of petitioner no.1) whereas the respondent no.4 was appointed as an English Stenographer vide order dated 16.9.1981 against the substantive post of English Stenographer in the Court of Civil Judge. Admittedly, the petitioners joined and started workings as Stenographers prior to the respondent no.4. The State Government, it appears regularised the temporary vacancy notified in the year 1979, subsequently sometimes in the year 1987, merely because the State Government took a long time to confirm the temporary vacancy into permanent one, the petitioners who were working cannot be denied the benefit of their working from the date of their initial appointment by using literal interpretation of Rule 19 of the 1947 Rules. The word 'ordinarily' used for the Rule 19 of 1947 Rules in fact, envisages an eventuality resulting in an anomaly if determination of seniority by using the literal interpretation is adopted. In fact, the present case is a classic case wherein the seniority should be determined on the basis of their initial working and not on the basis of their confirmation for the simple reason that the petitioners could not be confirmed as the posts on which they were appointed were themselves temporary and the State Government took a long time in conforming the said temporary sanctioned posts. Although, it is true that the petitioners have not challenged the confirmation of the respondent no.4 with retrospective effect in the present writ petition, however, what remains un-rebutted is that the respondent no.4 started working on the post of the Stenographer from a date subsequent to the date on which the petitioners started working.
Coming to the judgements relied upon by Sri R.C. Singh that the seniority should be determined from the date of initial appointment and not from the date of their confirmation, all the judgements cited by Sri R.C. Singh relate to rules which are differently worded than the Rule 19 of the 1947 Rules and, thus, are of no avail in the present case.
However, the facts of the case, in the case of Dileep Kumar Srivastava Vs. State of U.P. (supra) squarely apply to the facts in question and, thus, I have no hesitation in following the said judgement and holding that the fixation of seniority as done by the impugned order dated 30th May, 1996 (Annexure No.12 to the writ petition) and the rejection of the representation vide order dated 31.10.1996 (Annexure no.13 to the writ petition) are liable to be quashed and the same are hereby quashed.
The respondent No.1 is directed to re-fix the seniority of the petitioners and the respondent no.4 from the date of their initial appointment and not from the date of their confirmation. As the petitioners and respondent no.4 have already superannuated the consequences of the re-fixation of seniority will follow.
The writ petition is allowed. No order as to costs.
Order Date :- 30.8.2019 Hasnain