SULTAN AHMAD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The Petitioner is a Sadar Nazir in the Collectorate of Pratapgarh and according to the service rules applicable to him is eligible for being appointed to the post of Office Superintendent in the Collectorate through promotion. Earlier the matters regarding promotion were governed by paragraphs 1043 and 1044 of the Revenue Manual which are contained in Annexure -1 to the petition. Briefly the procedure for selection was that the Deputy Commissioners of the various districts within the Commissioner's Division used to forward to the Commissioner names of eligible candidates along with their character rolls and service records and then the Commissioner prepared a list of candidates found suitable on the basis of seniority subject to rejection of unfit. Whenever a vacancy arose in any district within the Division, appointment used to be made from that list in the order in which names appeared in the list. In the case of Petitioner his name was sent by the Deputy Commissioner to the Commissioner since vacancies were likely to occur in certain districts including Bahraich and Barabanki. A list was accordingly prepared by the Commissioner in which the Petitioner's name appeared at serial No. 6. He was a Muslim Kayastha and accordingly belonged to a backward -class in whose favour there was reservation in the matter of promotion. A vacancy arose in January, 1980 in Bahraich and Anr. in April 1980 in Barabanki. The Commissioner, however, kept the names pending for quite some time and ultimately prepared the list in October, 1980 in which the Petitioner's name was at serial No. 6. According to the G.Os. governing reservation in promotion, the Petitioner claims to be entitled to one such post on the basis of 15 percent reservation because the G.Os. also provided that in case there were two vacancies, one would go to the backward class candidate and the other was to be treated general and if there was only one vacancy, it was to go to general category. Since there were two vacancies in the Division, the Petitioner claimed that one of the vacancies may be offered to him. It was further alleged that his posting to one of these posts had already been decided upon and only formal communication was to be sent to him when suddenly the Commissioner, Faizabad Division wrote to the Deputy Commissioner, Pratapgarh that the select list prepared and sent with his letter, dated 15th November, 1980 to the Deputy Commissioners conveying the names of the persons selected should be treated as cancelled because meanwhile the earlier service rules had been re -placed by the U.P. District Office (Collectorate) Ministerial Service Rules, 1980 and consequently it was proposed that new selection according to the said rules be made. The Petitioner's contention, however, is that since he had already been selected to one of the vacancies then existing and mere formal orders had remained to be issued, his selection could not have been cancelled, particularly so because till the date of the cancellation letter the new rules had not been published in the Gazette. It will appear that the select list containing the Petitioner's name was conveyed to the Deputy Commissioners on 15th November, 1980 vide Annexure 3 but the new rules were issued through a Notification on 13 -10 -1980 which fact was perhaps not within the knowledge of the Commissioner when he issued the select list. On coming to know about the rules he issued cancellation letter on 17 -12 -80 contained in Annexure -4 although by that time the rules which were sent through Notification to the Commissioner, had not been notified in the Gazette and which publication was ultimately made on 7th February, 1981 in the U.P. Gazette. The Petitioner's contention, therefore, is that the rules not having been published in the Gazette could not have been given effect to before 7th February, 1981 and consequently the cancellation of the selection by letter dated 17 -12 -1980 was clearly contrary to law and would indirectly mean giving retrospective effect to the rules which could not be given unless there was specific provision to the effect.

(2.) Another contention of the Petitioner was that the rules, and particularly Rule 18 of the new Rules as worded, applied to vacancies arising after the commencement of these rules and since the vacancy for which the Petitioner was selected had already arisen much before the rules were notified, his selection should not be governed by the new Rules. He made representations to the Commissioner which were rejected and his representation to the State Government was withheld by the Commissioner on the ground that it contained no merit and the Petitioner could seek his remedy in a Court of law. It is in these circumstances that the Petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties to treat the Petitioner as Office Superintendent in pursuance of the selection already made vide letter, Annexure -3 and by a writ of certiorari the orders rejecting his representations and contained in Annexures 4 and 6 were sought to be quashed.

(3.) In their counter affidavits filed by the opposite parties Nos. 2 and 3 on almost identical grounds it was admitted that the Petitioner was a Muslim Kayastha belonging backward class and that vacancies to the post of office Superintendent of the Collectorate had arisen in Bahraich and Barabanki on 31 -1 -80 and 31 -3 -80 respectively. It was also admitted that a select list was prepared according to rules on 15 -10 -80 and the Petitioner's name stood at serial No. 6. The contention was that the Petitioner could, therefore, be appointed by promotion only after 15 -10 -80 when the select list was prepared and since in the meanwhile the new Rules had been notified on 13 -10 -80, the list prepared on 15 -10 -80 happened to be contrary to the rules then applicable and hence it was cancelled by a letter, dated 17 -12 -80. It has been disputed on behalf of opposite parties that the rules to be effective required to be published in Gazette and the contention was that from the very fact that they were issued with Notification, dated 13 -10 -80 to the concerned Heads of the Departments and Offices, it should be inferred that they had come into force immediately with effect from the date of the Notification irrespective of the fact that they were published in the Dazette only subsequently, on 7th February, 1981.