STATE OF UTTAR PRADESH Vs. ASHOK KUMAR SRIVASTAVA

JUDGEMENT

(1.) Leave granted.

(2.) The 1st respondent was appointed as a Lecturer on 23.3.1996 in "Ras Shastra" in Rajkiya Ayurvedic College and Chikitsalaya, Lucknow. The State Government vide notification dated 21.12.1990 notified the Service Rules, namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako Ki Seva Niyamawali, 1990 (for short, "the rules") for the teachers of Uttar Pradesh Ayurvedic Colleges. Under the rules, the promotional post from amongst the Lecturers is Readers. As the vacancies in respect of Readers were not filled up, the respondent No. 1 preferred W.P. No. 1136 (S/B) of 2004 before the High Court of Judicature at Allahabad at Lucknow Bench, Lucknow, wherein the High Court took note of the statement by the learned counsel for the State and directed that it should be in the fitness of things that the Public Service Commission shall make earnest efforts to expedite the whole process relating to promotion within a period of six months. Eventually, on 15.6.2005 the U.P. Public Service Commission, (for short 'the Commission'), the respondent No. 2 herein, recommended the names of six persons for promotion to the post of Readers. As far as the respondent No. 1 is concerned, he was placed at serial No. 6 and it was mentioned therein that the vacancy in respect of which the 1st respondent had been recommended for promotion had arisen after the superannuation of one Dr. Hari Shanker Pandey on 31.7.2001. The state Government considering the recommendation of the commission issued an office memorandum on 16.8.2005 promoting the 1st respondent and given him the posting in State Auyrvedic College, Lucknow. As the 1st respondent was given seniority w.e.f. 16.8.2005 which is the date of passing of the order of promotion he felt aggrieved and the said grievance compelled him to prefer O.A. No. 134 of 2006 before the U.P. State Public Service Tribunal (for short "the tribunal"). The tribunal by order dated 2.2.2007 directed that the applicant therein should submit a representation to the Government within a period of one month against the order dated 16.08.2005 which shall be disposed of within two months by passing a reasoned order. In pursuance of the aforesaid order the State of U.P. vide letter dated 4.6.2007 sought a clarification from the Commission about its recommendation and after receipt of the said communication from the Commission and on due deliberation vide order dated 2.1.2008 the representation of the 1st respondent was rejected and it was clearly stated that seniority had been accorded to him from the date of passing of the order of promotion i.e. 16.8.2005.

(3.) Grieved by the order rejecting the representation the respondent No. 1 preferred W. P. No. 1268 (S/B) of 2008 before the High Court contending, inter alia, that he was entitled to be given retrospective seniority with effect from the date when the vacancy had arisen. The stand and stance put forth by him was opposed by the State and its functionaries by filing a counter affidavit that as per Rule 21 of 1990 rules the respondent's seniority had been correctly fixed from the date of promotion but not from the date when the vacancy arose. The 1st respondent brought to the notice of the High Court that ten persons had been conferred seniority with retrospective effect and he had been discriminated. The High Court placing reliance on a three-Judge Bench decision in Keshav Chandra Joshi and Others v. Union of India and Others, 1992 Supp1 SCC 272 and after reproducing paragraph 24 of the said Judgment expressed the opinion that the principle laid down therein was binding and on that rationale distinguished the decision in Nirmal Chandra Sinha v. Union of India, 2008 14 SCC 29. The High Court further proceeded to state that the service rules itself empower the Government to decide the seniority from the date of vacancy and when ten promotees had been accorded seniority relating back to the date of arising of vacancy, denial of the similar benefit to the petitioner by adopting a different criteria amounted to hostile discrimination inviting the frown of Article 14 of the Constitution. Being of this view, the Division Bench of the High Court quashed the impugned order dated 2.1.2008 and directed the respondents therein to consider the case of the petitioner and pass a fresh order in accordance with the verdict given by it. The penetrability of the aforesaid order is called in question by the State of U.P and its functionaries in this appeal by way of special leave.