GIRISH CHANDRA SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) A final seniority list of Excise Inspectors of the U.P. Excise Department dated 20.6.2003 is under challenge in all these writ petitions. These parties can be classified into six groups. Writ Petition No. 31185 of 2003 between Ravindra Kumar Nigam v. State of U.P. is filed by Excise Inspector appointed by direct recruitment to the post in 1994. (First Group) Writ Petition No. 26863 of 2003 between Promod Dhawan and two Ors. v. State of U.P., Writ Petition No. 26936 of 1993; between Hart Lal v. State of U.P., Writ Petition No. 32548 of 2003 between Rajesh Kumar Tandon v. State of U.P. No. 32548 of 2003 between Suresh Kumar Tandon v. State of U.P, and No. 28444 of 2003 between Arun Kumar Saxena v. State of U.P. have been filed by Sub-Inspectors in State Excise Department who were promoted as Excise Inspector on 17.11.1992. (Second Group) Writ Petition No. 26937 of 2003 between Girja Shankar Singh and two Ors. v. State of UP., has been filed by Excise Inspectors who were promoted from the post of routine grade Clerks/Reference and Accounts Clerks. (Third Group) Writ Petition No. 30988 of 2002 between Udham Singh v. State of U.P. has been filed by Excise Inspector promoted from the post of routing grade clerk on 22.11.1972 and thereafter senior clerk on 28.9.1978. senior assistant on 18 .1.1992 and thereafter as Excise Inspector on 17.12.1992. (Fourth Group) Writ Petition No. 32066 of 2001 between Girish Chandra Srivastava v. State of U.P. and No. 32068 of 2001 between Girja Shankar Singh v. State of U.P., is by an Excise Inspector promoted from the post of routing grade clerk, on 17.11.1992 (Fifth Group). The sixth group is of retrenched employees of other departments absorbed directly as Excise Inspectors, who are not represented.

(2.) The recruitment and promotion of Excise Inspectors in the U.P. Excise Department was regulated by U.P. Subordinate Excise Service Rules, 1976, made under the proviso to Article 309 of the Constitution of India for regulating the service condition of U.P. Subordinate Excise Service. Rule 4 provided for the strength of the service, and Rule, 5, the source of recruitment. Three sources were provided for recruitment to the service i.e., (a) by direct recruitment of candidates, on the result of a combined competitive examination conducted by the Commission, (b) by promotion of permanent clerks of the Office at the headquarters of the Excise Commissioner, and other regional and subordinate excise offices of the Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh and (c) by promotion of permanent Tari Supervisors, Rules 7 authorized Excise Commissioner to decide the number of candidates to be recruited from each of three sources specified in Rule 5. In deciding the question regard was to be paid to the relative number of promoted and directly recruited persons in the cadre of the service, and in an case not more than ten percent of the candidates to be recruited in any one year, were to be recruited by promotion, each from source (b) and (c) respectively, if suitable candidates were available Rule 27 provided seniority in the service to be determined by the date of the order of appointment in substantive vacancies, provided if two or more candidates were appointed on the same date, their inter-se seniority was to be determined according to the order in which the appointments were made under Rule 26 (2). These Rules were superseded by Uttar Pradesh Subordinate Excise Service Rules, 1983. Rule 4 of these Rules provided the cadre strength to be determined by the Governor from time to time and Rule 5 provided for recruitment to various categories of post in the U.P. Subordinate Excise Service to be made from following sources; (a) Excise Inspector, (i) 90% by direct recruitment on the result of a combined competitive examination conducted by the Commission, (ii) 10% by promotion from amongst the permanent Sub-Excise Inspectors; (b) Sub-Excise Inspectors (i) 77% by direct recruitment (ii) 10% by promotion from amongst from Tari Supervisor who have passed High School examination and have put in at least ten years of service including temporary service as such, and (iii) 13% by promotion from amongst service of Head Constable/Excise Constables posted in the Office of Excise Commissioner, U.P. and subordinate officers who have passed High School examination and have put in at least ten years of service including temporary service as such. A proviso to Rule 5 provided that if suitable and eligible persons are not available for promotion, the posts may be filled by direct recruitment. Rule 27 provided for relaxation of conditions of service. These Rules were again superseded by the U.P. Subordinate Excise Service Rules, 1992 notified on January 7, 1992, which, presently regulate the service conditions. Rule 4 of these Rules provided for strength of the cadre of the service and the each of category of post to be determined by the Governor from time to time, Rule 5 provides for sources of recruitment. Rule 16 provides for procedure for recruitment by promotion through the Selection Committee. Rule 17 provides for combined select list for any year of recruitment, to be prepared by taking the names of candidate from the relevant list in such cyclic order with the prescribed percentage to maintain the first name in the list being the person appointed by the promotion under Rule 16. Rule 21 provides the seniority to be determined from amongst the persons substantively appointed in any category of posts, in accordance with the U.P. Government Servants Seniority Rules, 1991 (in short Seniority Rules, 1991) as amended from time to time, Rule 27 provides for relaxation from condition of service Rules 5, 21 and 27 relevant for present matter are quoted as below :-

(3.) Before dealing with rival contentions of the parties, who have challenged fixation of their seniority, in the final seniority list dated 20.6.2003, it is relevant to refer to some of the cases decided by this Court and Supreme Court in the matter of appointments and seniority of Excise Inspectors in the department. Civil Misc. Writ Petition No. 13704 of 1983, between Ram Sewak Prasad v. State of U.P., was decided by Supreme Court on 11.7.2001, reported in the AIR 1991 SC 1988. Petitioner Ram Sevak Prasad, in this said writ petition before Supreme Court, was appointed as Excise Sub-Inspector in February, 1964, promoted as Excise Inspector on ad hoc basis on February 24, 1972. He was confirmed as Sub-Inspector on 2nd December, 1992 with effect from April, 1967. Although promoted on ad hoc basis he was continuously working as Excise Inspector since February 24, 1972. Respondents Raghuvir Singh and Ramdin were direct recruits on the post of Excise Inspector and had joined on March 29, 1972 and May 14, 1972 respectively. They were promoted as Excise Superintendent on 29th September, 1993. Petitioner Ram Sewak Prasad was not considered for promotion to the post of Excise Superintendent. He was not even shown in the seniority list of Excise Inspectors. He filed writ petition claiming promotion on the strength of his ad hoc services. The State Government defended the matter in stating that petitioner's promotion to the post of Excise Inspector was against the Rules. He was appointed on ad hoc basis and thus he was not shown in the seniority list, and was not considered for promotion as Excise Inspector. The Supreme Court after considering 1967 and 1983 Rules held, that Rule 21 (I) of 1983 Rules specifically permits substantive appointment to the cadre of Excise Inspector with back date. The framers of 1983 Rules was conscious that cadre of Excise Inspector was in existence from 1963 onwards and some of them, were promoted as Excise Inspector at the time of enforcement Rules of 1983, and in order to do justice to persons like petitioner, provision of back dated appointment was made in 1983 Rules. The department was directed to appoint petitioner as Excise Inspector under 1983 Rules, by giving him promotion w.e.f, February 24, 1972.