B K MISRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) PETITIONER B. K. Misra (in writ petition No. 27 of 1980) joined as Munsif on July 14, 1952 in the U. P. Civil Service (Judicial Branch) and was confirmed on the post on July 14, 1954. His place in the gradation list was at serial No. 10 on the basis of the position obtained by him in the selection held by the U. P. Public Service Commission. While working as a Munsif, Misra was sent on deputation on the post of Competent Officer under the Evacuee Property (Separation) Act, 1951 and worked there till May, 1963. He came back from deputation the same year and worked as a Judge, Small Causes Court at Agra and thereafter as Civil Judge, Nainital till 1966. Misra again went on deputation, on the request of the Government of India, in the year 1966 and functioned as an Assistant Settlement Commissioner-Incharge Custodian of Evacuee Property till March 31, 1970. On May 1, 1970 he was appointed as Civil and Sessions Judge at Nainital. This was a post in the U. P. Higher Judicial Service. In 1974, the cadre of Civil and Sessions Judges was merged with that of the Additional District Judges under the U. P. Higher Judicial Service (Abolition of the cadre of the Civil and Sessions Judge) Rules, 1974 framed by the Governor through a notification dated May 8, 1974. By an order dated November 14, 1977 Misra was allowed to cross the second efficiency bar in the pay scale of Rs. 1000-2000 with effect from August 1, 1977 which was the due date. The Registrar of the High Court communicated a gradation list of the District Judges, Addl. District Judges and Sessions Judges through letter No. C-1320/79 dated September 26, 1979 in which Misra was assigned seniority at serial No. 169. According to him, he should have been placed at serial no. 65 on the basis of the length of service. He made a representation to the High Court on the administrative side but when it failed to evoke any reply, he approached the Court on its judicial side seeking relief under Article 226 of the Constitution through the present writ petition. Since Misra is to attain the age of supper-annuation in September, 1986 he has prayed, inter alia, for being given due seniority on the basis that he is senior to the officers impleaded as respondent nos. 3 to 104 in the gradation list. In other words, his claim is that he should be given his seniority at serial no. 65.

(2.) D. N. Shukla (petitioner in writ petition No. 10341 of 1979) was also appointed as a Munsif in accordance with the U. P. Nyayik Sewa Niyamavali, 1951 on September 13, 1952. He was confirmed as Munsif two years later on September 13,1954. In July, 1961 he became a Civil and Assistant Sessions Judge. On January 15, 1970 he was appointed as a Temporary Civil & Sessions Judge and was continuing as such when on May 8, 1974 he became an Additional District Judge on account of the U. P. Higher Judicial Service (Abolition of the cadre of Civil and Sessions Judge) Rules, 1974. Shukla was confirmed as an Addl. District Judge with effect from July 23, 1977 subject to his seniority being considered later as there was some adverse entry in his character roll which was expunged on November 15, 1977. In the gradation list of September 26, 1979 he was shown at serial no. 170 having regard to the date of his confirmation as Addl. District Judge. His case is that he should have been shown, according to the seniority that he earlier had, at serial no. 78.

(3.) THE U. P. Higher Judicial Service which was created in the year 1953 and in which recruitment, in the first instance, was made to the post of Civil and Sessions Judge contemplated recruitment from two sources, namely, (i) by promotion from the members of the U.P. Civil Service (Judicial Branch) and (ii) by direct recruitment. THE U. P. Civil Service (Judicial Branch) Rules, 1951 called the U. P. Nyayik Sewa Niyamavali 1951 provides in rule 19 for preparation of a list of candidates by the U. P. Public Service Commission, while recommending them for appointment to the Judicial Service and for arranging the names of candidates in the order of merit on the basis of their general suitability. And, rule 23 provides for the candidates being placed on probation in the first instance. Confirmation is to be made at the end of the period of probation under rule 25. For those candidates who were appointed subsequent to the enforcement of these rules, rule 22 of the Niyamawali envisages determination of seniority with reference to the year of competitive examination on the result of which a candidate was recruited and the position in the list prepared under rule 19. A candidate would lose his seniority if he did not join his service, when a vacancy was offered to him, without any reason or cause.