This petition is directed against the order passed by the District Judge, Rampur dated 10/16th March, 2000 (contained as annexure-6 to the writ petition). This order refers to a communication sent by the Deputy Registrar, High Court of Judicature at Allahabad conveying the observations on the administrative side, which reads as follows:-
"It appears that the answer books were deliberately kept in the manner that the same may not be rechecked. In fact, the entire examination emacks of arbitrariness and unfairness. The said examination requires cancellation. Two of the selection candidates namely, Ganga Prasad and Brij Lal have already been reverted by means of the order dated 9.8.99. It appears that since Sri Mathur the then District Judge acted arbitrarily in selecting Rajendra Prasad, Ganga Prasad and Brij Lal for promotion to class III, the entire examination process is required to be quashed and Sri Rajendra Prasad, Ganga Prasad and Brij Lal for promotion to class III, the entire examination process is required to be quashed and Sri Rajendra Prasad be also reverted to his original post in class-IV."
It is in purported compliance of such direction that the petitioner has been reverted to Class-IV post. Aggrieved by the said order, the petitioner has filed this writ petition.
Facts, as have been narrated in the writ petition, are to the effect that the petitioner was appointed as a Class-IV employee in District Judgeship Rampur on 09.09.1991. The order of appointment is Annexure-1 to the writ petition. This order of the appointment shows that the appointment offered to the petitioner is purely on temporary basis and his services could be terminated without any prior notice.
Having worked as such for a few years, the petitioner claims to have been promoted by the then District Judge on 07.07.1998. The order of promotion records that there is a shortage of Class-III employees and that there is no chance of declaration of result in near future. It is stated that examination of Class-IV employees was held for promotion and that the petitioner along with two others stands selected in the order of merit for promotion. It is this order of promotion, which is quashed by the Court on the administrative side and the consequential order of the District Judge is assailed in the present petition.
A counter affidavit has been filed by the District Judgeship stating that the petitioner was engaged pursuant to his order of appointment on 09.09.1991 and remained in service till 12.07.1993. His services were thereafter discontinued. It appears that the petitioner was again appointed on 15.09.1993 and is in continuous service since then. The period of petitioner's absence from service was not only regularized by the then District Judge, Rampur but he has also passed the order of promotion in favour of the petitioner. In paragraph 7 of the counter affidavit it is stated that only one post was available for promotion, whereas three promotions were effected by the District Judge and that the petitioner's promotion, being in excess of available vacancy, is otherwise impermissible.
A rejoinder affidavit has been filed, in which the averment made in paragraph 4 of the counter affidavit are admitted. It is stated that the period of working from 12.07.1993 to 14.07.1993 was treated to be period of leave without pay.
Learned counsel for the petitioner has invited attention of the Court to a Government Order dated 31st August, 1982, which is annexed along with the counter affidavit, in which percentage of post reserved for promotion to Group-B post has been specified. Learned counsel states that regular/temporary employees, who have completed 5 years of regular service in the feeding cadre i.e. Class-IV are entitled to be considered for promotion against 15% vacancy. Relying upon this Government Order, learned counsel for the petitioner states that the petitioner's promotion was right and the cancellation of such promotion is arbitrary.
I have heard Sri Sanjeev Singh for the petitioner and Sri Ashish Mishra for the respondents and perused the material on record as well as original records relating to the promotion.
Before proceeding to examine the respective submissions advanced by the learned counsel for the parties, it would be appropriate to record that the engagement of the petitioner as also his claim for promotion on the relevant point of time was required to be considered in accordance with the U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as 'Rules of 1947'). Rule 11 of the Rules of 1947 stipulates that the recruitment on a post in the cadre shall be based on the results of a competitive examination and an interview by the District Judge at the headquarters of the judgeship. The examination and the interview is expected to be held in the manner laid down in Appendix-II. Rule 14 provides that the names of candidates recruited in accordance with Rule 12 shall be entered in order of merit in a bound register in Form (B) prescribed in Appendix I and each entry shall be initialled and dated by the District Judge. Rule 15 then provides for appointments to the ministerial establishment being made by the District Judge. Rule 17 specifically provides that one person on his appointment to the ministerial establishment, except when the appointment is only in temporary and officiating capacity, on promotion to higher post which fall substantively vacant shall be on probation for a period of three months. Rule 18 provides for confirmation at the end of the period of probation. Rule 19 stipulates seniority in service from the date of order of confirmation in the grade. Rule 20 thereafter provides for promotion to the post of Clerk in the judgeship concerned.
Facts of the present case needs to be examined in light of the above statutory scheme. From the material placed on record it is not clear as to how and in what manner the petitioner got appointed to Class-IV post itself. The order of appointment clearly indicates that the petitioner's engagement was on a temporary post. There is nothing on record to show that the petitioner was ever confirmed on Class-IV post. Such confirmation under the rules was otherwise permissible only when he was appointed and placed on probation. Rule 19 clearly stipulates that seniority in service, for the purposes of promotion, shall ordinarily be determined from the date of order of confirmation itself and in the absence of there being any substantive appointment offered to the petitioner, he was not eligible for promotion.
Sri Ashish Mishra, appearing for the Court, has also placed reliance upon the provisions contained in U.P. Subordinate Civil Court Ministerial Establishment Rules, 1955 (hereinafter referred to as 'Rules of 1955'). Rules of 1955 provides for method of recruitment and also specifies the appointing authority. Rule 13 and 14 of Rules of 1955 contains a similar scheme inasmuch as seniority in any class of post has to be determined from the date of substantive appointment or substantive promotion, as the case may be. Rule 14 provides for probation and confirmation. Rule 13 and 14 of Rules, 1955 are reproduced herein below:-
"13. Seniority.- Seniority in any class of posts included in the establishment shall be determined by the date of substantive appointment or promotion to that class:
Provided that if two or more persons are appointed on the same date their seniority should inter se be determined according to the order in which their name appear in the order of appointment.
14. Probation confirmation etc.- Every person on appointment to promotion to a post in the establishment in a substantive vacancy, shall be placed on probation for a period of one year at the end of which he shall be confirmed in the post if the appointing authority considers that his work has been satisfactory; but if he is not considered fit for confirmation in the post he will be reverted to his substantive post, if he has one, and if he has none his services will be dispensed with or without entitling him to any compensation:
provided that the appointing authority may extend the period of probation for a specified period not exceeding one year in individual cases."
Learned counsel for the petitioner, however, submits that the petitioners were not promoted but were appointed in the promotion quota.
The argument advanced in that regard is noticed only to be rejected. Promotion and appointment are two different modes of recruitment and unless a person is substantively appointed on a post in feeding cadre, question of his promotion on a higher post would not arise.
In the facts of the present case the petitioner was admittedly not appointed on Class-III post and it was not a case of direct recruitment. The alleged examination conducted by the District Judge was also for promotion and not for direct recruitment.
Since the petitioner had not been substantively appointed to the Class-IV post in 1991 and there is otherwise nothing on record to show that he was ever placed on probation, the question of his being treated as member of the cadre of a Class-IV post would not arise. Since the petitioner was not holding the post in the feeding cadre, question of his consideration for promotion to Class-III post otherwise could not have arisen. On the administrative side the Court has clearly observed that the then District Judge had acted arbitrarily in offering promotion to the petitioner and for such reasons the direction was issued to revert the petitioner.
In the facts of the present case, this Court finds that the order of the Court on administrative side is absolutely just and valid, inasmuch as the petitioner having not been substantively appointed to Class-IV post could not have been considered for promotion to the Class-III post. The Government Order, which has been relied upon by the petitioner will not come to his rescue inasmuch as in the hierarchy of laws the Government Order would not prevail over the specific provisions contained in the rule. As the statutory scheme does not permit consideration of a person appointed on temporary basis for promotion to a higher post, the Government Order cannot alter the scheme once the rules are specific in that regard.
In light of the above discussion, this Court is of the considered opinion that the petitioner was not eligible to be considered for promotion and as the exercise was otherwise found to be arbitrary, the direction to cancel such promotion merits no interference.
Before concluding it is worth recording that in the original records produced there is nothing on record to show that any committee was constituted for scrutinizing the merits of eligible candidates and there exists only a single page note, which contains the signature of the District Judge concerned only.
The procedure, which has been followed for effecting the order of promotion appears to be wholly illegal and lacks transparency. Such arbitrary action if has been nullified by a direction issued on the administrative side, this Court finds no justification to interfere with under Article 226 of the Constitution of India.
The writ petition is, accordingly, dismissed.
The original records shall be returned.
Dismissal of this writ petition, however, will not cause any interference in the working of the petitioner on Class-IV post and the respondents shall consider his claim for regularization in accordance with law. Petitioner's claim for promotion on its due turn, as per such seniority and in accordance with law, would also be examined notwithstanding this order.
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