A.F.R.

Judgment reserved on 23.03.2021

Judgment delivered on 02.06.2021

Court No.10

Case :- SPECIAL APPEAL No. - 552 of 2017

Appellant :- State Of U.P.Throu,Secy.Deptt.Of Secretariat Admin.Lko.& Ors

Respondent :- Dr. Kishore Tandon And Ors.

Counsel for Appellant :- Sandeep Dixit

Counsel for Respondent :- Apoorva Tiwari,Alok Kumar Tripathi,Arun Kumar

Srivastava,Ashok Shukla,Gyanendra Nath,Himanshu Raghava,Sanjay Tripathi,Vijay

Kumar Srivastava

With

Case :- SPECIAL APPEAL No. - 421 of 2018

Appellant :- Vineet Kumar Sharma And Ors.

Respondent :- State Of U.P.Throu.Secy.Deptt.Of Secretariat Admin.Lko.& Ors

Counsel for Appellant :- Saurabh Lavania,Himanshu Kamboj

Counsel for Respondent :- C.S.C.,Apoorva Tewari,Ashok Shukla

With

Case :- SPECIAL APPEAL No. - 296 of 2018

Appellant :- Onkar Nath Tiwari And Ors.

Respondent :- State Of U.P.Throu,Secy.Deptt.Of Secretariat Admin.Lko.& Ors

Counsel for Appellant :- Himanshu Raghave,Snajay Tripathi

Counsel for Respondent :- C.S.C.,Apoorva Tewari,Ashok Shukla

With

Case :- SPECIAL APPEAL No. - 448 of 2018

Appellant :- Ram Ji Mishra And Ors.

Respondent :- Dr.Kishore Tandon And Ors.

Counsel for Appellant :- Upendra Nath Misra

Counsel for Respondent :- C.S.C.,Alok Tripathi,Amit Bose,Apoorva Tewari,Ashok

Shukla,Suresh Chandra Yadav

Hon’ble Ramesh Sinha, J.

Hon'ble Rajeev Singh,J.

1.Heard Dr. L.P. Mishra, learned counsel appearing on behalf of the

State/appellants and Shri Anil Kumar Tiwari, learned Senior Advocate assisted

by Shri Apoorva Tiwari, learned Counsel for the respondents.

2.All the appeals have been preferred against the judgment and order

dated 21.09.2017 passed by learned Single Judge in Writ Petition (S/S) No.

5828 of 2015 (Dr. Kishore Tandon & Ors. Vs. State of U.P. & Ors.) along with

connected Writ Petition (S/S) No. 12598 of 2017 (Hari Shankar Nath Tiwari &

Ors. Vs. State of U.P. & Ors.), on the ground that the directions issued by the

learned Single Judge with regard to reopening of the

appointment/regularisation of the Lower Division Assistants (hereinafter

NeutralWCitationWNo.W-W2021:AHC-LKO:6464-DB

2

referred as “LDA”) in U.P. Secretariat under U.P. Secretariat Upper Division

Assistant & Lower Division Assistant (Regularisation of Officiating Promotion)

Rules, 1990, are in utter violation of the directions issued by a coordinate Bench of

this Court in Special Appeal No. 31 of 2005 vide judgment and order dated 8

th

May,

2015, which have been upheld by the Hon'ble Apex Court in SLP (C) No. 23254 of

2014 vide order dated 29.03.2017.

3.Factual matrix of the case is that the respondents-petitioners, who were

selected and appointed through U.P. Public Service Commission on the post of

Lower Division Assistant (hereinafter referred to as the ‘LDA’), approached the writ

Court with the grievance that the directions issued by the coordinate Bench of this

Court in Special Appeal No. 31 of 2005 dated 8

th

May, 2015 were not followed at

the time of preparation of seniority list dated 08.09.2015. Further, Rule 9(2) of U.P.

Government Servant Seniority Rules, 1991 was also not considered. The prayer

sought by the respondent-petitioners in the said writ petition was that the seniority

list of LDA of U.P. Secretariat is liable to be set aside. They also prayed for

mandamus commanding the appointing authority to redetermine the seniority of

the respondent-petitioners and place them in the seniority list after serial no. 810.

The prayers sought in the said writ petition are reproduced hereunder:

“(a) to issue a writ, order or direction in the nature of

certiorari quashing the impugned order dated 08.09.2015 and the

final seniority list for the cadre of assistant review officer as

contained in Annexure No. 1 to this writ petition;

(b) to issue a writ, order or direction in the nature of

mandamus commanding the respondent nos. 1 to 3 to re-

determine the seniority of the petitioner and place them in the

seniority list after serial no. 810.”

4.While placing the facts of the case, Shri L.P. Mishra, learned counsel for the

appellants submitted that in the Secretariat of Uttar Pradesh, the ministerial staffs

were regulated under the provisions of U.P. Secretariat Ministerial Staff Rules, 1942

(hereinafter referred to as ‘Rules, 1942’).

Due to exigency of service, the persons working on the posts of Typist,

Telephone Operators, Tele Printer, Talex Operator/Junior Grade Clerk were allowed

to officiate as LDA from 1

st

April, 1989 and were continuing as such. Similarly,

persons substantively appointed as LDA were allowed to officiate in the capacity of

Upper Division Assistant (for short the ‘UDA’). Learned counsel for the appellants

submitted that thereafter, in exercise of powers conferred under Article 309 of the

Constitution of India, Hon’ble Governor vide Notification dated 23.07.1990 was

3

pleased to frame Rules for regularisation/appointment of the persons

officiating/working on the post of LDA as well as UDA in the U.P. Secretariat. The

said Rule is known as U.P. Secretariat Upper Division Assistant & Lower Division

Assistant (Regularisation of Officiating Promotion) Rules, 1990 (hereinafter referred

to as Rules, 1990).

Further submission advanced by Dr. L.P. Mishra is that on 23.07.1990, total

sanctioned strength of LDA was 1259 (808 permanent + 451 temporary). However,

as on the said date, i.e., on 23.07.1990, total 2032 persons were working as LDA,

(28 persons, who were holding substantive post of LDA and 2004 persons, who

were working as officiating LDA), the State Government, with the intention to

regularise all the 2004 persons officiating/working on the post of LDA, vide Office

Memo dated 6

th

August, 1990 created 773 temporary posts of LDA in accordance

with law. Learned special Counsel also submitted that the aforesaid Office Memo

clarifies that creation of the aforesaid posts are made only with the intention to

regularise all the persons officiating/working on the post of LDA and no fresh

appointment would be made on these posts. It further clarifies that when the

regular vacancy arises, the person regularised on the temporary post shall be

shifted/merged on the said regular post and his vacant post would be abolished

automatically. Learned counsel for the appellants also submitted that all 2004

persons were regularised on the post of LDA w.e.f. 23

rd

July, 1990 by way of

separate regularisation order to each individual under the provisions of the Rules,

1990. Thereafter, vide orders dated 24.07.1991 and 25.07.1991, the seniority list of

LDA was issued.

5.Dr. L.P. Mishra, Special Counsel appearing for State of U.P./appellant

submitted that Part II of Rules, 1942 provides the strength of the staff, which was

divided in four groups. Group A is denoted as superior and it consists 4 cadres,

Group B denotes as subordinate, which consists 5 cadres, Group C denotes

Stenographer and Group D denotes miscellaneous petty posts, which are outside

the purview of Commission. Part III of the Rules, 1942 provides the source of

recruitment of the staff and the LDA are to be appointed by competitive

examinations conducted by the Commission, subject to the provisions of Rules 14

and 24 of the Rules, 1942.

Relevant part of Part II as well as Part III of the Rules, 1942 are quoted

hereunder :

“PART II - CADRE

4

Rule 3. Strength of the Staff - (1) The strength of the staff both

permanent and temporary, shall be such as may be determined by the

Governor from time to time:

Provided that the appointing authority may leave unfilled or hold in

abeyance any vacant post in any cadre without thereby entitling any

person to compensation.

Note - The present sanctioned staff consists of the following

separate cadres:

(A) Superior

(1) Upper Division Assistants (including Assistants

Superintendents) -114

(2) Translators (including Assistant Superintendents) - 24

(3) Journalists - 4

(B) Subordinate

(1) Treasurer - 1

(2) Budget Assistant - 1

(3) Reference Clerk (Including Accountant) - 29

(4) Lower Division Assistants - 106

(5) Hindi and Urdu Typists - 4

(C) Stenographers

Stenographers - 26

(D) Miscellaneous petty posts specified below which are outside

the purview of the Commission

(1) Caretaker, Council House - 1

(2) Telephone Operators - 4

(3) Typewriter Mechanic - 1

(4) Junior Grade Clerks - 8

(ii) The staff as a whole does not constitute one service. The

classes of posts enumerated under the heading "(A) Superior" in the Note

above are not inter-changeable one another nor with the posts of

stenographer. Members of a lower class have no right to posts in a higher

class except to the extent indicated in these rules.

4. Status – The status of the staff is that of a non-gazetted

subordinate ministerial service.

Note – The post of Caretaker, Council House has been treated as

non-ministerial though minister servants may be appointed to it.

PART III - RECRUITMENT

Rule 5. Sources of recruitment - Recruitment to the staff shall be made

as follows:

(A) Superior

1. Upper Division Assistants - By competitive examination conducted by

the Commission, except as provided in rule 21.

5

2. Translators - By competitive examination conducted by the

Commission, subject to the provisions of rule 12.

(B) Subordinate

1. Treasurers, Additional Treasurers | By promotion under

Assistant Treasurers,Treasurers-cum-Accountants | rule 27 in consultation

2. Accountants and Budget Assistants | with the Commission.

(posts carrying special pay)

3. Reference Clerks (including posts of | By promotion under

Accountants and Budget Assistants | Rule 28

carrying no special pay)

| By competitive

| Examinations

| conducted by the

4. Lower Division Assistants | Commission subject

| to the provisions of

| rules 14 and 24.

(C) Stenographers

| By competitive

| Examination

| conducted by the

Stenographers | Commission subject

| to the provisions of

| rules 13.

(D) Miscellaneous petty posts outside the purview of the Commission

(a) Caretaker, Vidhan Bhawan | By Selection under

(b) Telephone Operators | rule 20 without a

(c) Typewriter Mechanic | reference to the

(d) Junior Grade Clerks | Commission.

5-A. Saving in respect of Estate Department – Notwithstanding anything

contained in rule 5 or any other provision in these rules, such members of

the staff of Government Estate Department as were holding substantive

appointments in that department, immediately before April 1, 1965, shall,

in consequence of the merger of the department with the Uttar Pradesh

Secretariat, become and e deemed to be, on and from the said date,

members of the staff within the meaning of rule 2(1).

9. Academic qualifications – The minimum academic qualification

required of candidates for direct recruitment to various categories of

posts shall be -

(1) Upper Division Assistants : A degree of a University.

(2) Translators (Hindi and Urdu) : A degree of a University. A candidate

for the post of Translator must have taken one of het following languages

in his degree examination:

(1) Urdu

(2) Hindi

(3) Persian

(4) Sanskrit

6

(5) Arabic

(3) x x x x x x x x x x x x x x x x

(4) Lower Division Assistants : Bachelor’s degree from a recognised

University.

Provided that the minimum academic qualification, in respect of the

candidates who have been serving in the Secretariat as Lower/Upper

Division Assistant from a date earlier than January 9, 1959 shall be High

School Examination Certificate and after the aforesaid date it shall be

Intermediate.

(5) x x x x x x x x x x x x x x x x x

(6) Stenographers : Intermediate Examination Certificate.

(7) (i) Telephone Operators : High School Examination Certificate

(ii) Junior Grade Clerks : Intermediate Examination Certificate

(8) Caretaker, Council House : Intermediate Examination Certificate

(9) Typewriter Mechanic : Efficiency in the repairs of typewriters with a

thorough knowledge of their mechanism; preference being given to a

candidate who possess the High School Examination Certificate.

9-A. Exemption from educational qualification of merged staff of Estate

Department- Nothing contained in rule 9 shall apply or deemed to have

ever applied to the members of the staff of the Government Estate

Department to whom rule 5-A of these rules applies.

14. Reservation of vacancies in the posts of Lower Division

Assistants in special circumstances -

(1) x x x x x x x x x x x x x x x x x

(2) The appointing authority may, in special circumstances but not

generally, and with the concurrence of the Commission, reserve in any

year up to eighty percent of the total number of permanent vacancies

intended to be filled in that year, for department candidates who have

rendered temporary or officiating service in the said or higher post for

such total period as may be fixed in that behalf in consultation with the

Commission and whose work is considered by the appointing authority to

be satisfactory. The vacancies so reserved may be filled on the basis of a

qualifying examination to be conducted by the Commission, from

amongst candidates who come up to such standard as is considered by

the Commission to be reasonable. There shall be no upper age limit for

such candidates either for their appearance at the said qualifying

examination or in the event of their success at that examination, for their

appearance- on equal terms with the candidates for direct recruitment at

any subsequent competitive examination referred to in rule 5 in respect of

the posts of Lower Division Assistants.

(3) Notwithstanding anything contained in rule 14(2) or in any other rule,

the appointing authority may, having regard to the exigencies of Public

Service, fill in existing permanent vacancies in the posts of Lower Division

Assistants to the extent of 80 percent from such departmental candidates

who were recruited in previous years through the Commission against

temporary vacancies or those recruited on the basis of a qualifying

examination and who have completed at least one year’s temporary or

officiating service on the post of a Lower Division Assistant or on an

higher post and whose record of service is considered to be satisfactory.

24. Reservation of vacancies in the posts of Lower Division

Assistants – (1) One vacancy in the posts of Lower Division Assistants

7

shall be reserved in every alternate year of recruitment, for such

Telephone Operators and Junior Grade Clerks and approved candidates on

the waiting lists for these posts as have rendered in the Secretariat a total

service of not less than three years, including officiating or temporary

service, as on the first day of the year in which the examination referred

to in rule 5(B)(4) is held and whose work after a consideration of their

character rolls and personal filed, if any, is considered by the appointing

authority to be satisfactory and who come up at the said examination to

such standard as is considered by the Commission to be reasonable.”

6.Dr. L.P. Mishra next submitted that Rule 46 of the Rules, 1942 provides the

determination of the seniority, which states that the seniority of a member of the

staff shall ordinarily be determined in the class to which he is appointed by the

date of his substantive appointment and in case of more than one person

appointed on the same date, according to their respective positions in the waiting

list.

Rule 46 of Rules, 1942 is reproduced hereunder:

"Rule 46. Seniority - The seniority of a member of the staff shall

ordinarily be determined in the class to which he is appointed by the date

of his substantive appointment and in the case of more than one person

appointed in the same date according to their respective positions in the

waiting list.

Provided that the seniority of such members of the staff as were

holding substantive appointments in the Government Estate Department

immediately before April 1, 1965 shall in consequence of the merger of

that Department will the Uttar Pradesh Secretariat be determined in such

a manner that for every two years of service rendered by them in a

substantive capacity in that Department before the said date, they shall

be allowed the benefit of one year's substantive service, and their

seniority vis-a-vis the other members of the staff shall be fixed

accordingly."

7.Dr. L.P. Mishra, learned counsel for the appellants submitted that for

regularisation of officiating departmental candidates, Rule 14(2) of the Rules, 1942

was amended by way of promulgation of U.P. Secretariat Ministerial Staff Rules,

1982. On the advise of task force, for the smooth and expedite working in the

Secretariat, the Government decided to abolish 427 posts of typists and to create

427 temporary posts of LDA vide Notification No. 697/20-E-5-110/87-TC/88 dated

10

th

February, 1989.

It has next been submitted by the learned counsel for the appellants that

several employees, who were holding different posts as per the provisions of Rules,

1942, were given officiating charge of LDA and were performing the said duties for

quite long time, as such, the State Government extended the benefit of regular

appointment to those persons working on the higher posts, in officiating capacity,

by promulgating the Rules, 1990 on 23.07.1990. Rule 2 of Rules, 1990 provides

8

that it is having overriding effect on other Rules or Order. Rule 4 of Rules, 1990

provides that the person, who has initially been appointed on the post of Typist or

Telephone Operators or Tele Printer or Talex Operator or Junior Grade Clerk and

has subsequently been promoted in an officiating capacity to the post of LDA on or

before 01.04.1989 and is continuing on such post, shall be considered for regular

appointment in permanent or temporary vacancy that may be available to the post

of LDA. Rule 6 of Rules, 1990 provides that appointment made under these Rules

shall be deemed to be appointment under Service Rules, i.e., Rules, 1942. Rule 7

of the Rules, 1990 provides that persons appointed under the said rules, shall be

entitled to seniority in accordance with the Service Rules and for this purpose,

selection under these Rules, shall be deemed to be selection under Service Rules.

Rules 4 to 8 (relevant) of the Rules, 1990 are as under :

“ 4. (1) Any person who -

(i) was appointed to the post of Lower Division Assistant after

being approved by the Commission for regular appointment to such post

and was subsequently promoted in an officiating capacity, to the post of

Upper Division Assistant before April 1, 1989 and is continuing as such ;

(ii) was initially appointed to the post of Typist or Telephone

Operator or Teleprinter Operator or Telex Operator or Junior Grade Clerk,

on a regular basis, and was subsequently promoted in an officiating

capacity to the post of Lower Division Assistant before April 1, 1989 and is

continuing as such or on a higher post;

shall be considered for regular appointment in permanent or temporary

vacancy as may be available, to the post of Upper Division Assistant

regarding persons falling under clause, (i) and to the post of Lower

Division Assistant regarding persons falling under clause (ii).

(2) In making regular appointment under these rules, reservation for

candidates belonging to the Scheduled Castes, Scheduled Tribes, and

other categories shall be made in accordance with the orders, the

Government in force at the time of consideration for regularisation under

sub-rule (1).

(3) For the purpose of sub-rule (1) the appointing authority shall

constitute a Selection Committee comprising;

1. One Officer not below the rank of Joint Secretary to the

Government nominated by the Chief Secretary.

2. One Officer not below the rank of Joint Secretary to the

Government in Personnel Department, nominated by Secretary to the

Government in Personnel Department.

3. One Officer not below the rank of Joint Secretary to

Government in Secretariat Administration Department nominated by

Secretary to the Government Secretariat Administration Department.

The senior most officer shall be the chairman.

(4) The appointing authority shall, having regard to the provisions of sub-

rule (1), prepare an eligibility list of the candidates, and place it before

the Selection Committee alongwith character rolls and such other records

as may be considered necessary to assess their suitability.

9

(5) The Selection Committee shall consider the cases of candidates on the

basis of their records referred to in sub-rule (4).

(6) The selection Committee shall prepare a select list of candidates, and

forward it to the appointing authority.

(7) Where in respect of any person, who is eligible for being considered

for regularisation under these rules, a formal departmental enquiry is

pending or there is an order of the Court on account of which or for any

other reason due to which it is not possible to make regular appointment

by promotion of such a person. Selection Committee shall place its

recommendation in a sealed cover and shall mention this fact against the

name of the concerned person in the list prepared under sub-rule (6).

5. The appointing authority shall, subject to the provisions of sub-

rule (2) and (7) of rule 4, make appointments from the list prepared

under sub-rule (7) ;

Provided that in the cases covered by the provisions of sub-rule

(7) of rule 4, action shall be taken by the appointing authority in

accordance with the orders of the State Government.

6. Appointments made under these rules shall be deemed to be

appointments under the Service Rule.

7. A person appointed under these rules shall be entitled to

seniority in accordance with the Service Rules and for this purpose

selection under these rules shall be deemed to be selection under the

Service Rules :

Provided that the inter-se seniority of the candidates so appointed

shall be the same as it was in the cadre from which they were promoted

on an officiating basis.

8. Where a person, promoted on officiating basis, is not found

suitable or whose case is not covered by sub-rule (1) of rule (4) of these

rules, he shall, at once, be reverted to the substantive post from which

officiating promotion was made and on such reversion he shall not be

entitled to any compensation.”

8.Adding to his arguments, Dr. L.P. Mishra, learned counsel for the appellants

submitted that thereafter in exercise of powers conferred by Article 309 of the

Constitution of India, in suppression of all existing rules or orders in relation to the

service of Ministerial Staff of U.P. Secretariat, the State Government promulgated

U.P. Secretariat Ministerial Service Rules, 1999 (hereinafter referred to as ‘Rules,

1999’).

Rule 5 of the Rules, 1999 provides 6 cadres of the post in the service, i.e.,

(i) Upper Division Assistant, (ii) Lower Division Assistant, (iii) Telephone Operator,

(iv) Fax Calculator-cum-Typist, (v) Typewriter mechanic, (vi) Junior Grade Clerk.

Source of recruitment for the post of LDA is 60% by direct recruitment

through Commission, 40% by promotion through the Commission, from amongst

substantive appointed Telephone Operator (6%), Typist (84%), Junior Grade Clerk

(10%), who have completed 5 years’ service as such, on the 1

st

day of the year of

recruitment.

10

By way of 4

th

amendment known as U.P. Secretariat Ministerial Staff (4

th

Amendment) Rules, 2002 made in Rules, 1999, the nomenclature of UDA and LDA

was changed by designating it as Sameeksha Adhikari (Reviewing Officer) and

Sahayak Sameeksha Adhikari (Assistant Reviewing Officer).

9.It has also been submitted by the learned counsel for the appellants that

requisitions dated 19.03.1991 and 13.04.1994 were sent to the Public Service

Commission for selection on the posts of LDA, i.e., 61 and 76 respectively with

corrigendum dated 18.11.1994. After completion of the selection process, the

appointment orders were issued on 30

th

May, 1999, 11

th

July, 1996 and 3

rd

February, 1999. Thereafter, seniority list dated 05.05.2000 and 02.11.2000 was

issued for the post of Assistant Reviewing Officer and its consequential order was

issued on 21.11.2000.

The aforesaid seniority lists dated 24.07.1991, 25.07.1991, 05.05.2000 as

well as 02.11.2000 and its consequential order dated 21.11.2000 were challenged

before a writ Court by means of Writ Petition No. 6012 (S/S) of 2000 (Suryamani

Singh & Ors. Vs. State of U.P. & Ors.) on the ground that the same have been

made without following the Rules, 1942, Rules, 1990 and Rules, 1999.

10.The writ court while allowing the above writ petition vide order dated

06.08.2004 quashed the seniority list dated 02.11.2000 and consequential order

dated 21.11.2000. The writ Court also directed to modify the seniority list

published on 24.07.1991 and 25.07.1991 maintaining at least 20% quota for direct

recruits appointed up to 18

th

February, 1999 and thereafter 60% for direct recruits

and 40% for promotees or regularised promottees, by applying Rules 8(2) and

8(3)(i) of Seniority Rules, 1991 and to provide prescribed quota for each selection

year in the light of observations made therein and thereafter to promote the

directly recruited candidates on the post of UDA from the dates their juniors had

been promoted with consequential benefits.

11.The aforesaid judgment dated 06.08.2004 was challenged by the State

Government in Special Appeal No. 31 of 2005 (State Vs. Suryamani Singh & Ors.),

on the ground that the persons, who were initially appointed on the posts of

Typist, Telephone Operators, Tele Printer, Talex Operator/Junior Grade Clerk and

were allowed to work on the post of LDA on officiating basis, were extended the

benefit of regular/direct appointment under the provisions of U.P. Secretariat Upper

Division Assistant (Regularisation of Officiating Promotion) Rules, 1990 w.e.f.

23.07.1990. Thereafter, the seniority list dated 24.07.1991 and 25.07.1991 were

11

issued, which became the subject matter of consideration in Writ Petition No. 6200

(S/B) of 1993 along with other connected matters before a Division Bench of this

Court and the said writ petition was dismissed on 02.07.1996. Further ground

taken by the State Government in Special Appeal No. 31 of 2005 was that a Special

Leave Petition No. 25086 of 1996 (U.P. Secretariat UDA Association Vs. State of

U.P. & Ors.) was also filed against the aforesaid judgment of the writ Court dated

02.07.1996, which was dismissed by a speaking judgment and order dated 27

th

January, 1997 and the validity of the seniority lists dated 24.07.1991, 25.07.1991

along with Rules, 1990 were upheld, therefore, the same cannot be reopened.

It has vehemently been submitted by Dr. L.P. Mishra, learned Special

Counsel for the appellants that the coordinate Bench of this Court vide judgment

and order dated 08.05.2015 passed in said Special Appeal No. 31 of 2005 again

upheld the validity of Rules, 1990 as also the appointment of the persons under

Government Order dated 23.07.1990 under Rules, 1990 declaring them as direct

recruits and, thus, the selection and regular appointment made under Rules, 1990

has attained finality,

12.Reiterating his submissions with regard to justification of creation of 773

temporary posts of LDA by the State Government to give regular appointment to

the persons officiating/working on the post of LDA, Dr. L.P. Mishra submitted that

as on 23.07.1990, 2032 persons (2004 officiating + 28 substantively appointed)

were working on the post of LDA, but as the substantive vacancies available were

1259 (permanent 808 + temporary 451), vide Government Order dated

06.08.1990, 773 temporary posts of LDA were created by the State Government.

Again clarifying the position, learned counsel for the appellants submitted that Para

2 of the Rules, 1990 provides that aforesaid vacancies are temporary posts in the

cadre of LDA up to 28

th

February, 1991 and the persons when merged/shifted in

the regular cadre posts, the aforesaid created 773 posts will not be filled up in

future and these posts shall be automatically deemed abolished.

The Government Order dated 06.08.1990 is being reproduced as under :

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voj oxZ lgk;d ds 773 vLFkkbZ in osrueku :0 1200&30&1560&n-jks-

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¼1½ mDr inksa ds /kkjdksa dh 'kklu }kjk le; le; ij tkjh vkns'kksa ds

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¼2½ mDr vLFkkbZ in m0iz0 lfpoky; ds voj oxZ lgk;d ds inksa esa

vLFkkbZ o`f) ds :i esa ekus tk;saxsA

¼3½ mDr lHkh vLFkkbZ in] ;fn og fcuk fdlh iwoZ lwpuk ds lekIr u dj

fn;sa tk;sa] fnukad 28-2-1991 rd dh vof/k ds fy;s l`ftr jgsaxsA

¼4½ mijksDr inksa dk l`tu voj oxZ lgk;d ds inksa ij fofu;ferhdj.k ds

fy;s gh fd;k tk jgk gS] vkSj bu inksa ij fdlh Hkh n'kk esa dksbZ u;h

fu;qfDr ugh dh tk;sxh rFkk tSls tSls buds in/kkjh vU; laoxZ ds inksa ij

lek;ksftr gksrs tk;saxs oSls oSls ;g in Lor% lekIr ekus tk;saxsA

2- bl lEcU/k esa gksus okyk O;; pkyw foRrh; o"kZ 1990&91 ds vk;&O;;d

dh vuqnku la[;k&84 ds fuEufyf[kr ys[kk 'kh"kZdksa ds vUrxZr lqlaxr

bdkb;ksa ds ukesa Mkyk tk;sxk%&

1& ^^2052&lfpoky;&lkekU; laok;sa

vk;kstusRrj&090&lfpoky;&01&lfpoky;^^

2& ^^2251&lfpoky;&lkekftd laok;sa

vk;kstusRrj&090&lfpoky;&01&lfpoky;^^

3& ^^3451&lfpoky;&vkfFkZd laok;sa

vk;kstusRrj&090&lfpoky;&01&lfpoky;^^

rFkk O;; dks cprksa ls ogu fd;k tk;sxkA

3- ;s vkns'k foRr foHkkx dh v'kkldh; la[;k& bZ&5&1269@nl&90

fnukad 3 vxLr] 1990 esa izkIr mudh lgefr ls tkjh fd;s tk jgs gSA

nsoh n;ky

lfpoA

13

la[;k 4861¼1½@20&bZ&5&191@90] rn~fnukad

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%&

¼1½ lfpoky; ds vf/k"Bku dk;Z ls lEcfU/kr leLr vuqHkkx

¼2½ lfpoky; iz'kklu ¼vf/k"Bku½ vuqHkkx&1

¼3½ foRr ¼O;;&fu;U=.k½ vuqHkkx&5

¼4½ foRr ¼osru&vk;ksx½ vuqHkkx&1@2 ¼N% N% izfr;kWa½

¼5½ lfpoky; iz'kklu ¼ys[kk½ vuqHkkx&1@2@3

¼6½ iz'kklfud lq/kkj vuqHkkx&2

¼7½ foHkkxh; iqfLrdkA

¼8½ foRr ¼vk;&O;;d½ vuqHkkx&2

¼9½ LFkkfud vk;qDr dk;Zy;] ubZ fnYyhA

vkKk ls]

¼vkj-,u- JhokLro½

fo'ks"k lfpoA^^

13.Dr. L.P. Mishra further submitted that the coordinate Bench while upholding

the validity of Rules, 1990, held that the persons appointed in accordance with the

Rules, 1990 are direct recruitees. It is further observed that benefit of Rules, 1990

was given to 2032 persons working/officiating on the post of LDA and the 773

posts of LDA were temporarily created vide order dated 06.08.1990. It is also

observed by the coordinate Bench that 773 persons were appointed/regularised

prior to the declaration of vacancies, however, the seniority can be claimed by the

incumbents from the date of substantive appointment against the vacancies,

meaning thereby, 773 persons are entitled to get the seniority from the date of

availability of the vacancies, i.e., 06.08.1990.

The coordinate Bench observed that at the time of implementation of Rules,

1990, available vacancies of LDA were not examined. Special appeal was allowed

by setting aside the judgment and order of the writ Court dated 6

th

August, 2004

as also the seniority list dated 2

nd

November, 2000 as well as the rejection of

representation dated 21.11.2000 and all consequential actions. The coordinate

Bench also clarified that the seniority lists of LDA are to be determined in view of

the observation and principles spelled out in the judgment as well as the Rules and

Regulations, applicable as per law. After exercise is completed, the seniority list

14

dated 24.07.1991 and 25.07.1991 would stand modified, accordingly, if necessary

fall out of such exercise. Applications for validity of Rules, 19990 was also rejected.

14.Learned special Counsel for the State also submitted that aforesaid

judgment of the coordinate Bench dated 8

th

May, 2015 was challenged in SLP (C)

No. 23254 of 2014 before the Hon'ble Apex Court, which was also dismissed vide

order dated 29.03.2017.

However, in the meantime, seniority list dated 08.09.2015 was issued in

compliance of the order dated 08.05.2015 passed in Special Appeal No. 31 of

2005. The said seniority list dated 08.09.2015 was challenged by the private

respondents herein by approaching the writ Court on the ground that the seniority

list dated 08.09.2015 has been issued in gross violation of the specific directions of

this Court issued in Special Appeal No. 31 of 2005. Further ground of challenge

made in the writ petitions was that the petitioners, who were direct recruits on the

post of LDA through the U.P. Public Service Commission on a requisition sent in

respect of vacancies and were appointed during the years 1996 to 1999, are

loosing their seniority as their substantive appointment was being altered to 2000-

2001. Their grievance was that as 773 temporary/supernumerary posts were

created for the purpose of regularisation/appointment of the officiating persons on

the post of LDA, thus, the said persons appointed on the said 773 post could not

count seniority and their names could not be included in the seniority list.

Learned counsel also submitted that another ground in the writ petition was

that the cadre strength of LDA (now Assistant Reviewing Officer) was 886 at the

time of joining of respondent-petitioners, therefore, they are entitled to get their

seniority within the cadre strength.

15.Submission of the learned Special Counsel for the State is that the correct

facts were not placed before the learned Single Judge by the respondent-

petitioners and the said petition was allowed vide order dated 21.09.2017. He also

submitted that the directions given by the coordinate Bench in Special Appeal No.

31 of 2005 dated 08.05.2015 was complied in true sense by the State Government

by finding out the vacancies as were available on 23.07.1990.

On 22.07.1990, cadre strength of LDA was 1259 (808 permanent + 451

temporary) and on the said date, i.e., on 22.07.1990, 578 persons were having lien

against the 1259 posts of LDA. Further, 550 LDAs were officiating on the post of

UDA, who were regularised on the post of UDA on 23.07.1990 in pursuance of the

Rules, 1990. It has next been submitted that after giving promotion to 550 LDA on

15

the post of UDA, available vacancies were 1231 (550 + 681).

He also submitted that 2032 persons were working on the post of LDA on

22.07.1990, out of which, 28 persons were substantively appointed persons and

rest 2004 persons were working as officiating LDA. As the regular appointment

was made against the said 2004 posts, but since only 1231 posts of LDA were

available, therefore, on 06.08.1990, 773 temporary additional posts of LDA were

created and remaining persons were also regularised. The coordinate Bench, at the

time of deciding the Special Appeal No. 31 of 2005 held that the persons appointed

under Rules, 1990 were direct recruittee, therefore, 1231 persons are entitled to

get their seniority from 23.07.1990 and rest of the persons, i.e., 773 are entitled

for their seniority since 06.08.1990. He also submitted that the respondent-

petitioners came in the cadre later, therefore, they are entitled their seniority from

the date of their substantive appointment. He also conceded the facts that 773

persons, those were regularly appointed under the Rules, 1990 are entitled their

seniority from 06.08.1990 as prior to the availability of the posts, seniority cannot

be given. He also submitted that temporarily created posts vide Government Order

dated 06.08.1990 are validly counted within the cadre of LDA till the merger of all

the persons within the regular cadre, i.e., 1259. He also submitted that direction of

learned Single Judge in relation to the opening of issue of regularisation of persons

appointed on the post of LDA under Rules, 1990 dated 23.07.1990, is contrary to

the judgment of the coordinate Bench and the regularisation cannot be opened

when the decision of coordinate Bench dated 08.05.2015 has already been upheld

by the Hon'ble Apex Court. Therefore, the judgment passed by the writ court,

which is under challenge, is liable to be set aside.

16.Learned special Counsel for the appellants also submitted that the 773 posts

of LDA created vide Government Order dated 06.08.1990, are cadre posts. In

support of his argument, he relied on the decisions of the Hon'ble Apex Court in

the cases of J.S. Yadav Vs. State of U.P. & Anr., (2011) 6 SCC 570 and Union

of India Vs. Puspa Rani, (2008) 9 SCC 242. He also drew attention of this Court

on Rule 9(22) of U.P. Fundamental Rules, 1987, that defines the ‘permanent post’

as a post carrying a definite rate of pay sanctioned without limit of time.

He next submitted that a person is entitled to reckon his seniority from the

date of his substantive appointment. To substantiate his arguments that, in case, a

person is appointed against supernumerary post, he is entitled for his seniority

from the date of his substantive appointment, Dr. L.P. Mishra placed reliance on the

16

judgments of the Hon'ble Apex Court in the cases of Pramod Kumar Trivedi Vs.

State of U.P., 2012 (11) ADJ 253, Union of India & Anr. Vs. Dr. Akhilesh

Chandra Agarwal, (1998) 4 SCC 107, Dr. D.K. Reddy & Anr. Vs. Union of

India & Ors., (1996) 10 SCC 177.

17.Learned counsel appearing for the appellants in the connected appeals also

adopted the arguments advanced by Dr. L.P. Mishra, learned Special Counsel

appearing for the State.

18.Shri Apoorva Tiwari appearing on behalf of the respondent-petitioners, on

the other hand, submitted that there is no illegality in the order dated 21.09.2017

passed by the learned Single Judge.

Placing reliance on the judgments of the Hon'ble Apex Court in the cases of

Rajasthan State Industrial Development & Investment Corporation Vs.

Subhash Sindhi Cooperative Housing Society, (2013) 5 SCC 427 and N.

Ramachandra Reddy Vs. State of Telangana, (2020) 16 SCC 478 ., learned

counsel for the respondent-petitioners submitted that if substantial justice has

been done between the parties, no interference is needed.

He further submitted that before issuing seniority list, availability of

vacancies prior to the enforcement of the Rules, 1990 were not calculated in the

form of separate chart. He also submitted that it is undisputed that the

respondent-petitioners were appointed during the period 1996-1999 in accordance

with the Rules, 1942.

19.Placing the facts of the case, in his way, Shri Apoorva Tiwari submitted that

in the year 1988, the cadre strength of LDA was 1259 (808 permanent + 451

temporary) and against the aforesaid 1259 posts, 460 persons were substantively

working as LDA. The Government of U.P. has given the officiating promotion to

persons initially appointed on the post of Typist, Telephone operator, Telex

Operator/Junior Grade Clerk to the post of LDA. In the similar manner, persons

working substantively on the post of LDA were allowed to work in the officiating

capacity on the post of UDA. Thereafter, in order to regularise the officiating

promotion, the State Government promulgated the Rules, 1990.

Rule 3(2) of Rules, 1990 defines the term “available vacancy”, which means

a vacancy in which, no candidate has been recommended by the Commission

before the date of notification of these Rules, which means that before the

notification of Rules, 1990, no such candidate ought to be recommended by the

17

Commission for the post of LDA. Rule 4(1)(ii) of Rules, 1990 provides that any

person appointed on regular basis on the post of Typist, Telephone operator, Telex

Operator/Junior Grade Clerk and subsequently promoted in an officiating capacity

to the post of LDA before 01.04.1989 and continuing on the said post, shall be

considered for regular appointment to the post of LDA. Rule 4(3) of Rules, 1990

prescribes the constitution of Selection Committee for considering appointment.

The Selection Committee, so constituted, has to consider the names of the

candidates mentioned in the eligibility list prepared as per Rule 4(4) and prepare a

select list and forward the same to the Appointing authority. The Appointing

authority, in turn, is required to make appointment from the select list prepared by

the Selection Committee.

20.Submission of the learned counsel for the respondent-petitioners is that no

effort was made by the State Government to ascertain available vacancy, as

defined in Rule 3(2) prior to implementation of Rules, 1990. He also submitted that

only the posts, against which, appointments could have been made under Rules,

1990, are those which were vacant on 22.07.1990. It has vehemently been

submitted that the State Government acted in arbitrary and illegal manner, i.e.,

neither prepared eligibility list nor constituted Selection Committee, as provided in

Rules, 1990 and straight away regularisation orders were issued to employees on

the post of LDA on 23.07.1990 itself. Thereafter, the State Government, in exercise

of powers conferred under the proviso of Article 309 of the Constitution of India

promulgated U.P. Government Seniority Rules, 1991, which were given overriding

effect over all other Service Rules. The said Rules were notified on 20.03.1991.

21.Shri Apoorva Tiwari next submitted that the seniority list of LDA was

finalised on 24.07.1991 and 25.07.1991, wherein all the persons regularised (de

hors the Rules, 1990), were placed in the seniority list without having any regard

to the sanctioned strength of the cadre, which comprises 808 permanent post and

451 temporary post.

He also submitted that the State Government vide letter dated 19.03.1991

sent requisition to the Commission to make direct recruitment on the post of LDA

against 61 posts. On 13.04.1994, the State Government again requisitioned 76

vacancies to Public Service Commission for direct recruitment of LDA. Thereafter,

vide letter dated 18.11.1994, the State Government, in consultation with the

Commission, divided the aforesaid 76 vacancies and added 30 vacancies, out of

aforesaid 76 vacancies, to 61 vacancies for which requisition was already sent on

18

19.03.1991. Shri Tiwari submitted that due to this exercise of the State

Government, the position, which emerged out, was that 91 vacancies became

subject matter of U.P. Secretariat Upper/Lower Division Clerk Examination, 1991

and remaining 46 vacancies became subject matter of U.P. Secretariat

Upper/Lower Division Clerk Examination, 1995. The respondent-petitioners were

selected and appointed on the post of LDA against the said U.P. Secretariat

Upper/Lower Division Clerk Examinations, 1991 & 1995.

22. It has next been submitted by the learned counsel for the respondent-

petitioners that the final seniority list was published on 02.11.2000 and the

objections to the same were rejected vide order dated 21.11.2000. The said

seniority list dated 02.11.2000 along with consequential order dated 21.11.2000

was quashed by the writ court in Writ Petition No. 6012 (S/S) of 2000 vide order

dated 06.08.2004. The State Government challenged the said order dated

06.08.2004 in Special Appeal No. 31 of 2005, which was allowed on 08.05.2015.

23.Shri Apoorva Tiwari, while justifying his argument that the learned Single

Judge has rightly set aside the seniority list dated 08.09.2015 vide order dated

21.09.2017 (impugned in the present appeal) submitted that the said seniority list

dated 08.09.2015 was issued without considering the direction issued by the

Division Bench in Special Appeal No. 31 of 2005 dated 08.05.2015 as also by

ignoring the vacancies, which arose in the year 1988, 1989, 1990, 1991, 1992,

1993, 1994 and 1995. He further submitted that the respondent-petitioners have

wrongly been placed in the seniority list by altering their substantive appointment

to 2000-2001.

He also submitted that persons working against 773 supernumerary post

could not be placed in the seniority list as these are ex-cadre posts. He next

submitted that in pursuance of the order dated 21.09.2017, seniority list dated

28.05.2018 has been issued, in which they categorically admitted that on

22.07.1990, 681 posts of LDA were vacant, but the State Government appointed

2004 LDA on 23.07.1990 under the provisions of Rules, 1990. He also submitted

that the impugned order of the writ Court is not be read as statue, rather it must

be read reasonably and in its entirety.

In support of his argument, Shri Apoorva Tiwari relied on the judgments of

the Hon'ble Apex Court passed in the cases of Prem Singh Vs. State of Haryana,

(2009) 14 SCC 494 and Goan Real Estate and Construction Ltd. Vs. Union of

India, (2010) 5 SCC 388.

19

It has, thus, been submitted that there is no illegality in the order passed by

the learned Single Judge and the present appeal is liable to be dismissed.

24.Learned counsel for the intervener while adopting the arguments advanced

by Shri Apoorva Tiwari, submitted that the persons appointed on the ex-cadre post

cannot be entitled for seniority in the regular cadre. Therefore, there is no illegality

in the order passed by the learned Single Judge.

25.We have considered the arguments advanced by the learned counsel for the

parties and perused the record.

26.Insofar as the argument advanced by Shri Apoorva Tiwari, learned counsel

for the respondent-petitioners that if the substantial justice has been done

between the parties, then interference would not be made on technical pleas, is

concerned, the same has no legs to stand and is hereby rejected, as admittedly,

the issue regarding the regularisation/appointment of LDA under Rules, 1990 has

already been decided by the coordinate Bench vide order dated 8

th

May, 2015 and

the same cannot now be reopened, as has been directed by the writ Court vide

impugned order dated 21.09.2017.

In view of above, the decisions of the Hon'ble Apex Court relied on by the

learned counsel for the respondent-petitioners in the cases of Rajasthan State

Industrial Development & Investment Corporation (supra) and N.

Ramachandra Reddy Vs. State of Telangana (supra) are not applicable in the

present case.

In an intra-court appeal, the scope of inquiry is limited. In the present

appeals, the judgment of the learned Single Judge is challenged before this Court

on the ground that whether the issue of regularisation/direct appointment of the

persons appointed under the provisions of Rules, 1990 can be reopened or not.

27.It is evident that the Ministerial Staff of U.P. Secretariat was being regulated

in accordance with the provisions of U.P. Secretariat Ministerial Staff Rules, 1942. It

is undisputed that Typist, Telephone Operator, Talex Operator, Typewriter Mechanic

and Junior Clerks working on substantive post were allowed to officiate as LDA

from 1

st

April, 1989. It is also evident from the record that total sanctioned

strength of LDA was 1259, i.e., (808 permanent and 451 temporary). On

22.07.1990, against the said 1259 posts of LDA, 578 persons were having lien on

the post of LDA, out of which, 550 LDA were officiating on the post of UDA and in

pursuance of Rules, 1990, they were regularised on the post of UDA. On

20

23.07.1990, after giving promotion to 550 LDA to the post of UDA, the available

vacancies for LDA were 1231. As on 22.07.1990, 2032 persons were working on

the post of LDA, out of which, 28 persons were regularly selected persons and rest

2004 persons were working as officiating LDA. As on 23.07.1990 1231 posts of

LDA were available after regularizing 550 LDAs on the post of UDA, therefore,

regular appointments of 2004 persons officiating as LDA were made against the

said posts. It was also found that 773 posts were not available, therefore, on 6

th

August, 1990, 773 posts of LDA were created. It is undisputed that on 23.07.1990,

2004 persons were appointed/regularised as LDA, but the posts of 773 LDA were

created on 06.08.1990, however, the substantive appointment has been given to

them since 23.07.1990. It is also evident that the total sanctioned strength of LDA

was 1259, but the seniority list of 2032 LDA was prepared on 24.07.1991 and

25.07.1991. Further, as the State Government created 773 post on 06.08.1990

temporarily adding in the cadre, therefore, 773 temporary posts created on

06.08.1990 would be counted in the cadre of LDA till their abolition, which itself is

mentioned in Government Order dated 06.08.1990. It is also undisputed that the

respondent-petitioners were selected through Public Service Commission on the

post of LDA against the requisition dated 19.03.1991 and 13.04.1994.

28.The seniority list for the post of LDA was prepared on 02.11.2000 and the

aforesaid seniority list and its consequential order dated 21.11.2000 along with

seniority list dated 24.07.1991 and 25.07.1991 were challenged in Writ Petition No.

6012 (S/S) of 2000. The said writ petition was allowed vide order dated

06.08.2004 and the seniority list dated 02.11.2000 and consequential order dated

21.11.2000 were quashed. The learned Single Judge vide order dated 06.08.2004

also directed to modify the seniority list published on 24.07.1991 and 25.07.1991

maintaining the quota as prescribed, i.e., at least 20% for direct recruits appointed

upto 18

th

February, 1999 and thereafter 60% for direct recruitees and 40% for

promotees or regularised promotees by applying Rule 8(2) and 8(3)(i) of Seniority

Rules, 1991. Writ court also directed to provide prescribed quota for each selection

year and also to promote them from the date their juniors had been promoted,

with consequential benefits.

Aforesaid judgment dated 06.08.2004 was challenged in Special Appeal No.

31 of 2005 by the State Government. A coordinate Bench of this Court allowed the

said appeal vide order dated 08.05.2015 and upheld the validity of Rules, 1990 and

appointment of 2004 persons as LDA vide order dated 23.07.1990 under Rules,

1990 was also upheld, declaring them as direct recruits. It was also observed by

21

the coordinate Bench that on 23.07.1990, 2032 persons were working on the post

of LDA and the substantive vacancies available were 1259, therefore, with the

intention to accommodate 773 persons, vide Government Order dated 06.08.1990,

773 temporary posts of LDA were created. Para 2 and 3 of the Rules, 1990

provides that aforesaid vacancies are temporary posts in the cadre of LDA upto

28

th

February, 1991 and after absorption of the persons appointed on the aforesaid

created 773 posts, in the regular cadre, the said posts will not be filled up in

future.

Relevant parts of judgment dated 08.05.2015 are being reproduced

hereunder:

“In order to calculate the vacancy, therefore, one will have to go

back to the availability of the vacancy prior to the enforcement of the said

rule which vacancies have to be such so that a person can claim his

substantive appointment against such vacancy. The reason is that

seniority would be given only from the date of substantive appointment

against such a vacancy. This determination for all such candidates who

have been regularised will therefore have to be made by preparing a

separate chart indicating as to how and when the vacancy became

available.

This is necessary as the vacancies came to be created vide

Government Order dated 6.8.1990 apart from the vacancies which were

existing. The first thing therefore to be done is as to which were the

vacancies that were available on 23.7.1990. So far as their subsequent

adjustment is concerned, the same can only be from the date any

vacancy is made available. This peculiar situation has arisen because of

the fact that the regularisation rules have been enforced even prior to the

declaration of the vacancies on 6.8.1990 which do indicate the dates from

which they have been made available to the incumbents. The question is

that the available vacancy has to be against such a vacancy for which no

candidate had been recommended by the Commission before the

notification of the Rules. The criteria therefore again will have to be as to

whether the vacancy was available so as to cover the regularised

appointments envisaged under the notification dated 23.7.1990. It is only

then that seniority can be claimed by the incumbent under Rule 46 of the

1942 Rules read with Rule 7 of the 1990 Regularisation Rules and the

1991 Rules of Seniority from the date of substantive appointment. This

determination does not appear to have been done from a perusal of the

impugned seniority list dated 2.11.2000 and the rejection of the

representation on 21.11.2000. Consequently, the seniority will have to be

redetermined by following this criteria and explicitly indicating the facts as

per the aforesaid criteria separately. This calculation therefore from the

date of the entry in the cadre as per available vacancy has to be revisited

as it does not appear to have been done by the appellant-State. At least

the same does not appear to be clear either from the impugned lists or

orders or from the counter affidavit filed on behalf of the State before the

learned Single Judge.

Apart from this, neither the learned Single Judge has touched this

issue of providing seniority from the date of entry into the cadre nor has

the division bench judgment dated 2.7.1996 taken notice of the aforesaid

rules for determination of seniority in respect of the Upper Division

Assistants. However, even though the dispute of Upper Division Assistants

22

has attained finality, yet this aspect in relation to Lower Division

Assistants was neither considered therein nor has it been determined by

the State Government as indicated above. Consequently, the

determination accordingly is an exercise which will have to be undertaken

for resolving the dispute between the respondent-petitioners and those

who have been regularised under the 1990 Rules.

There is one more aspect which has to be adopted while

determining seniority, namely, the determination of seniority on account

of the U.P. Government Servant Seniority Rules, 1991 coming into force.

This is necessary because the said Seniority Rules of 1991 came into

effect from 23.3.1991 and the seniority lists were prepared initially on

24.7.1991 and 25.7.1991. Thus, the Seniority Rules had come into force

by the time the seniority list had been issued. Consequently, the impact

thereof has also to be taken into account as the provisions of reservation

or of any other criteria mentioned in the said rules could not have been

ignored. The candidates who came to be appointed on substantive basis

after 23.3.1991, their seniority would be governed by the 1991 Rules as

they have an overriding effect over all other rules of seniority. This aspect

has also escaped notice of the learned Single Judge for modulating the

seniority in terms thereof.

Accordingly, the State Government will now have to undertake an

exercise in the light of the aforesaid principles and redetermine the

seniority as they would have an impact on the consequential benefits to

which the respondent-petitioners may be entitled or their adversaries

would be entitled as a result of such determination.

Having regard to the reasons given by us hereinabove, the

position that emerges is:-

1. That the writ petitioners did have a cause of action

as their objections vis-a-vis the seniority of those LDAs' who

were regularised vide order dated 23rd July, 1990 against

posts created on 6.8.1990, adversely affected the

respondent-petitioners with the promulgation of the seniority

list on 2.11.2000 and the rejection of the representation on

21.11.2000. We further hold that the petition of the

respondent-petitioners is not barred by laches for all the

reasons recorded hereinabove nor have they delayed the

filing of the writ petition as the cause of action arose to them

only after the lists and orders were issued on 2.11.2000 and

21.11.2000 respectively.

2. The division bench judgment dated 2nd July, 1996

in the case of U.P. Secretariat, UDA Association and 7 others

Vs. State of U.P., Writ Petition No. 6200 of 1993 as affirmed

by the Supreme Court in the decision in Special Appeal No.

25086 of 1996 decided on 27.1.1997 by the Apex Court and

reported in 1999 (1) SCC 278; U.P. Secretariat UDA

Association Vs. State of U.P. and others has attained finality

as in relation to Upper Division Assistants, subject to the

direction issued by the Apex Court to the effect that

promotees are also required to be fitted into service from the

date when they are entitled fitment in accordance with the

quota and rota prescribed under the rules, but at the same

time the said judgment would not be an impediment for the

reasons given in our judgment hereinabove for determining

the limited issue of seniority of the Lower Division Assistants.

3. The status of the employees who have been

regularized under the Regularization Rule dated 23rd July,

23

1990 and have been appointed under the post creation order

dated 6th August, 1990 are not promotees and can only be

treated as direct recruits for the reasons given in the

judgment hereinabove. The presumption raised and the

finding recorded by the learned Single Judge to that extent

stands reversed.

4. In view of our findings and conclusions that the

candidates who fall under the Regularization Rule of 1990

are not promotees and are direct recruits, there is no reason

to apply the quota and rota rule for promotees for them.

5. For the reasons given by us hereinabove, we also

hold that the State Government has not been able to

establish about any exercise of having undertaken for

determining the vacancies under Rule 11 of the 1942 Rules

as per the cadre strength defined under the rules. This

exercise will also have to be undertaken to first determine

the vacancies that are available in Rule 3(2) of the

Regularization Rules of 1990 in order to determine as to

whether the appointments by way of regularization have

been offered against the substantive vacancies available with

regard to which no candidate had been recommended by the

Commission before the notification of the said rules on 23rd

July, 1990. The argument of the learned counsel for the

respondent-petitioners that in order to claim seniority those

who have been regularized, their induction into the cadre

and date of entry upon being appointed in a substantive

capacity against a substantive vacancy has to be determined

before extending to them the benefit of seniority, is

accepted.

6. For this the status of post creation or availability of

the post in the cadre, the vacancies determined as per rules

and then the placement according to the date of substantive

appointment will have to be determined.

7. So far as those who have been extended the

benefit of 15% promotion from the post of Group-D/Class IV

Employees, their status stands determined by the

introduction of sub-rule (4) of Rule 14 of the 1942 Rules as

introduced on 5.11.1990 and therefore they have to be

allocated their space as per their appointment under the

aforesaid provision.

In view of the conclusions drawn hereinabove and the reasons in

support thereof, we allow Special Appeal No. 31 of 2005 and set aside the

judgment dated 6th August, 2004 but at the same time we also grant

relief to the writ petitioners to the extent of allowing the writ petition and

quashing the final seniority list dated 2nd November, 2000 as well as the

rejection of the representation of the writ petitioners vide order dated

21st November, 2000. All consequential action taken pursuant to the

judgment dated 6.8.2004 would also stand annulled including the

seniority list dated 21.10.2005.

As a consequence of the aforesaid relief having been extended,

we further clarify that the seniority list of the Lower Division Assistants

shall be redetermined in the light of the observations made hereinabove

and the principles that have been spelled out in this judgment as well as

the rules and regulations applicable as per the law prescribed and after

the exercise is completed, the list of 24.7.1991 and 25.7.1991 would stand

modified accordingly if necessary as a fall out of such exercise. This

24

exercise shall be undertaken by the State Government and concluded

preferably within a period of three months and till such exercise is

concluded no fresh third party rights should be created till finalization of

the seniority as per this judgment. So far as the consequential action

taken by the State Government pursuant to the impugned judgment

dated 6th August, 2004 is concerned, since the judgment has been set

aside, any action taken on the strength thereof also falls through.”

29.From a further perusal of the judgment of the coordinate Bench dated

08.05.2015, it is evident that the arguments advanced by the learned counsel for

the respondent-petitioners before this Court have already been placed before the

coordinate Bench and all these issues in relation to regularisation of the persons in

compliance of the Rules, 1990 as also the LDAs appointed through Public Service

Commission have already been considered and decided by the coordinate Bench in

the following terms.

“Sri Anil Tiwari, learned Senior Counsel assisted by Sri Apoorv

Tiwari has advanced his submissions on behalf of the respondent-

petitioners contending that the entire thrust of the argument of the State

Government primarily is that the rules, namely the Uttar Pradesh,

Secretariat Ministerial Staff Rules, 1942 do not make any provision for

promotions and therefore the concept of promotion is alien to the said

rules.

Sri Tiwari submits that the State has taken a stand as if the appointments

made by the State, the seniority whereof was in dispute before the

learned Single Judge was not by promotions and were alternate modes of

recruitment, but he submits that the pleadings in the counter affidavit of

the State are otherwise. The argument which is being advanced by Sri

Prashant Chandra for the State is therefore not in conformity with the

pleadings. He however submits that in essence if the rules are read

together then there are only two modes of recruitment, one that is direct

recruitment and the other modes are recruitments which are not direct

recruitment, and therefore are according to him nothing else but

promotions. For this he has invited the attention of the Court to Rule 2(f)

of the 1942 Rules, extracted hereinunder:-

"2(f) "Direct recruitment" means recruitment made

otherwise than by promotion"

The said rule defines direct recruitment to mean recruitment made

otherwise than by promotions. Sri Tiwari submits that the word promotion

therefore occurs in the 1942 Rules in contradistinction to direct

recruitment and therefore the same is clearly referable to the other

alternate modes of recruitment of departmental candidates who have

been extended the benefit by the State Government. He therefore

submits that the State Government cannot now say that they were not

promotions. He has further pointed out the definition of the meaning of

the word staff which means the entire cadre of non-gazetted ministerial

staff of the Secretariat. The cadre of the staff has been defined in Rule 3.

Elaborating his submissions, Sri Tiwari submits that for this further

reference will have to be made to Rule 14 of the 1942 Rules which is

extracted herein under:-

“Rule 14. Reservation of vacancies in the posts of

Lower Division Assistants in special circumstances-

25

(1) * * * *

(2) The appointing authority may, in special circumstances

but not generally, and with the concurrence of the

Commission, reserve in any year up to eighty per cent of the

total number of permanent vacancies intended to be filled in

that year, for departmental candidates who have rendered

temporary or officiating service in the said or higher post for

such total period as may be fixed in that behalf in

consultation with the Commission and whose work is

considered by the appointing authority to be satisfactory.

The vacancies so reserved may be filled on the basis of a

qualifying examination to be conducted by the Commission,

from amongst candidates who come up to such standard as

is considered by the Commission to be reasonable. There

shall be no upper age limit for such candidates either for

their appearance at the said qualifying examination, or in the

event of their success at that examination, for their

appearance on equal terms with the candidates for direct

recruitment at any subsequent competitive examination

referred to in rule 5 in respect of the posts of Lower Division

Assistants.

(3) Notwithstanding anything contained in rule 14(2) or in

any other rule, the appointing authority may, having regard

to the exigencies of Public Service, fill in existing permanent

vacancies in the posts of Lower Division Assistants to the

extent of 80 per cent from such departmental candidates

who were recruited in previous years through the

Commission against temporary vacancies or those recruited

on the basis of a qualifying examination and who have

completed at least one year's temporary or officiating service

on the post of a Lower Division Assistant or on a higher post

and whose record of service is considered to be satisfactory."

He contends that reservation of vacancies is contemplated under

the said rule for departmental candidates for recruitment/appointment to

the post of Lower Division Assistants. This is available to only such

candidates who have rendered temporary or officiating service on the said

post or higher post for a certain number of period that may be fixed by

the appointing authority in consultation with the Commission.

Sri Tiwari therefore submits that this nature of reservation of 80%

of the total number of permanent vacancies of Lower Division Assistants

is clearly meant for inhouse candidates and for those who are already in

service of the Secretariat. The provision therefore is to offer them a

higher post keeping in view the fact that they shall be entitled and eligible

for consideration provided they fulfill the conditions prescribed therein

which also includes the consideration of the candidate after he appears in

a qualifying examination to be conducted by the U.P. Public Service

Commission. He has further pointed out that no upper age limit is

provided for such candidates and therefore it is clear that the entire rule

is for providing benefit of higher avenues in service which is nothing else

but a mode of promotion and is not a mode of direct recruitment or any

other alternate mode of recruitment. He submits that upon fulfilling the

conditions, the person working in the lower grade gets a transition in

service the consequence whereof is eventual promotion to a higher post.

He contends that it is something different that the procedure prescribed

for such promotion is through the commission but the same is not direct

recruitment which envisages a different procedure under Rule 5 of the

1942 Rules. He submits that Rule 2(f) read with Rule 5(B)(4) clarifies the

26

position that direct recruitment is by competitive examination to be

conducted by the Commission whereas for the departmental candidates a

qualifying examination is to be conducted by the Commission from

amongst such candidates who have rendered temporary or officiating

service for a particular period as defined under Rule 14(2) referred to

hereinabove. This therefore takes such recruitment through reservation of

vacancies totally outside the purview of direct recruitment and by exercise

of such discretion in special circumstances the State Government is

empowered to make promotions.

The argument therefore appears to be that the seniority of such

persons, which is being contested by the respondent-petitioners, and who

were appointed by the State Government not by direct recruitment but by

other methods have to be treated as promotions. He however submits

that such recruitment is possible only after permanent vacancies are

determined to be filled in that year as per the determination of number of

vacancies under Rule 11 that has to be made annually to be filled up

either through examinations or selection as the case may be, but without

determining such vacancies the post cannot be reserved or offered to a

departmental candidate.

He further submits that mere selection under the rules does not

give any right of appointment unless the provisions of Rule 19 are also

observed which provides that the appointing authority after such

consideration under Rule 12, Rule 13 or Rule 14 as well as Rule 24 which

are the other modes of recruitment have to be subjected to an inquiry

and after a satisfactory opinion is formed in respect of such candidates

then only he will be considered to be qualified or else he will be

disqualified for appointment. He further contends that this two fold

scrutiny of first examining the standard of the candidate amounts to

judging his merit under Rule 14 through a qualifying examination and the

second stage is of considering his suitability in terms of Rule 19(2). Such

a rule is akin to the rule of merit-cum-seniority which is applied for

promotions. He therefore submits that this procedure as well indicates

that the other modes prescribed under Rule 12, 13, 14 and 24 are modes

of promotion to a higher post keeping in view the peculiar nature of

services of the Civil Secretariat. For this he submits that the Secretariat

Establishment is a separate establishment of a peculiar nature and they

are attached to an establishment from where they cannot be transferred

or sent to any other place and rather they have to virtually stagnate in

the same establishment. It is for this reason that the merit of suitable

candidates are to be assessed for offering higher posts through

reservation as defined aforesaid which clearly amounts to offering them

advancements in their career and which procedure is nothing short of

promotion. The LDA's, whose seniority is being assailed by the

respondent-petitioners, have actually been given the benefit of

promotion.

He has then invited the attention of the Court to Rule 24 which is

again a reservation of vacancies in the post of Lower Division Assistants

of a special category in relation to Telephone Operators, Junior Grade

Clerks and approved candidates on the waiting list of these posts. Here

Sri Tiwari advanced a separate argument that under Rule 24 it is

obligatory on the State to carry out this exercise and to offer appointment

by reserving one vacancy if the posts in every alternate year of

recruitment as provided in the said rule. He therefore submits that this is

yet another mode but which was never adopted by the State Government

inspite of a specific obligation cast on the State Government for doing so.

He has then invited the attention of the Court to Rule 34 which

makes a provision for waiting lists. Here he submits that there shall be

27

two types of waiting lists, one being the list of departmental candidates

qualifying separately under Rule 12, Rule 13, Rule 14 and Rule 24 and

then a combined list of all such candidates to be a waiting list which

according to him would be available to offer appointments on the higher

post of LDA as and when the vacancies come into existence.

Appointment is provided for under Rule 35 which has to be in

order in which the names of candidates stand in the list of selection or

the waiting list as the case may be.

When it comes to seniority under the 1942 Rules the provision is

clear that it shall be determined in the class to which one is appointed by

the date of his substantive appointment and in the case of more than one

person appointed on the same date according to their respective positions

in the waiting list. Rule 46 is quoted hereinunder:-

"Rule 46. Seniority - The seniority of a member of the

staff shall ordinarily be determined in the class to which he is

appointed by the date of his substantive appointment and in

the case of more than one person appointed in the same

date according to their respective positions in the waiting

list.

Provided that the seniority of such members of the

staff as were holding substantive appointments in the

Government Estate Department immediately before April 1,

1965 shall in consequence of the merger of that Department

will the Uttar Pradesh Secretariat be determined in such a

manner that for every two years of service rendered by them

in a substantive capacity in that Department before the said

date, they shall be allowed the benefit of one year's

substantive service, and their seniority vis-a-vis the other

members of the staff shall be fixed accordingly."

The contention therefore is that the candidates who are appointed

otherwise than through direct recruitment and are internal departmental

candidates, have to be considered as promotees and their appointment if

made in terms of 1942 Rules, would be treated as a substantive

appointment if the same has been done in conformity with the said rules.

On the other hand, if any promotion has been made without following the

said rules, then a person would not be treated to be substantively

appointed so as to form part of the cadre and claim consequential

seniority.

To substantiate his submissions that the rules indicate promotional

avenues and any attempt made to give a higher post amounts to

promotion, Sri Tiwari has cited the following judgments:-

1.1971(2) SCC 58 (Para 11); Dr. Harkishan Singh Vs. State of

Punjab and others;

2.1980 Supp. SCC 668 (Para 5); C.C. Padmnabhan and others Vs.

Director of Public Instructions and others;

3.1994 Supp (3) SCC 595 (Para 6); Director, Central Rice Research

Institution, Cuttack and another Vs. Khetra Mohan Das;

4.(1994) 5 SCC 392 (Paras 5 and 9); Tarsem Singh and another

Vs. State of Punjab and others;

5.1994 Supp (1) SCC 44 (Para 6); K. Narayanan and others Vs.

State of Karnataka and others;

6.(1995) 4 SCC 462; Union of India Vs. S.S. Ranade

28

7.1996 (1) SCC 562 (Paras 7 and 8); State of Rajasthan Vs. Fateh

Chand Soni;

8.(1999) 7 SCC 251 (Paras 6 and 15); Ram Prasad and others Vs.

D.K. Vijay and others.

The aforesaid judgments have been cited in support of the

proposition that whenever a higher post or a higher pay scale is offered

to an in house candidate, the same amounts to promotion.

These judgments therefore reflect on the concept of promotion as

an advancement in career to a higher post or a higher pay scale. With the

aid of these judgments, Sri Tiwari submits that the rules of 1942 which

provide for other modes of recruitment as discussed hereinabove, other

than direct recruitment, are clearly designed to promote the internal

departmental candidates.

Sri Tiwari thereafter has advanced his submissions in relation to

those 2034 candidates who have been absorbed under the Uttar Pradesh

Secretariat, Upper Division Assistants and Lower Division Assistants

(Regularization of Officiating Promotions) Rules, 1990 contending that the

regularisation is by way of promotion. This rule and offer of regularization

to such employees whose seniority is the bone of contention between the

respondent-petitioners and the State has been framed in exercise of

powers conferred under Article 309 of the Constitution of India. The rules

were notified on 23rd July, 1990. According to Rule 2 thereof, they shall

have effect notwithstanding to the contrary contained in any other rules

or orders but at the same time Rule 3(6) defines that service rule means

the Uttar Pradesh Secretariat Ministerial Staff Rules, 1942. Thus, even

though an overriding effect has been given to such rules, but they refer to

the 1942 Rules.

Sri Tiwari contends that regularization was offered to such persons

who were officiating in higher posts and were described as having been

promoted in officiating capacity. They were however to be considered for

regular appointment and according to Rule 4(3) a Selection Committee

consisting of three officers was to be constituted for selecting such

candidates and then preparation of an eligibility list for considering

appointment after assessing their suitability. The select list was to be

prepared by the Selection Committee.

The rules further provide that such appointments shall be

considered for regular appointment against permanent or available

temporary vacancies under Rule 4. The word available vacancy has been

defined in Rule 3(2) to mean such a vacancy for which no candidate had

been recommended by the Commission before the date of notification of

these rules. This clearly means that any vacancy, permanent or temporary

existing as per cadre strength under 1942 Rules, would be offered for

regular appointment provided such vacancies have not been notified or

recommended by the Commission before the date of notification of the

said rules. What therefore follows is if the Commission has not

recommended any candidate for any such vacancy then only

regularization would be offered against such a post. Sri Tiwari submits

that the vacancy has to be available before hand. The vacancy according

to him has to be determined as per Rule 11 of the 1942 Rules or

otherwise should also exist prior to the notifications of the rules of

regularization on 23rd July, 1990. It is only thereafter that the Selection

Committee would proceed to consider any candidate and it is only after

such selection that the appointment can be deemed to be an appointment

under the service rule as per Rule 6. He further points out that Rule 7 of

the 1990 rules also demonstrates that seniority would be available in

accordance with service rules and interse seniority of the candidates

29

would be the same as it was in the cadre from which they were promoted

on an officiating basis.

The contention of Sri Tiwari is that even this procedure under the

23rd July, 1990 notification was not followed nor was it observed and all

regularization which followed as a consequence of the said notification is

invalid. He submits that since the said rules also provide for a clear rule of

seniority to be adopted for such candidates, the same can always be

questioned and can be adjudicated by this Court even at the instance of

the respondent-petitioners who were born later in the cadre. This can be

done, inasmuch as, if any illegal appointment de-hors the rules and

contrary to the cadre strength has been made, the same would not confer

any entitlement at least to claim seniority over and above the direct

recruits.

He also contends that such appointees will be deemed to be in

service only if appointments can be saved lawfully and if the

appointments cannot stand the scrutiny of the rules under which such

appointments have been made such candidates have to be pushed down

for the purpose of seniority as against direct recruits.

The contention of Sri Tiwari is that even for the purpose of being

born in the promotion cadre the appointment has to be as per the cadre

strength and the vacancies available as indicated above and the

appointments should be in accordance with the rules. If both these

contingencies are absent, then if the appointment is beyond the cadre

strength the person would not be entitled to any such benefit unless he

enters the cadre as and when the vacancies are available. The State

Government did not undertake any such exercise and rather thrust upon

the cadre these 2034 candidates without there being any posts available.

In such circumstances, he contends that the issue of delay in challenging

the seniority awarded to such candidates would not impede the challenge

raised on behalf of the respondent-petitioners.

To demonstrate that the vacancies were not available, he has

invited the attention of the Court to Paras 7 and 8 and other paragraphs

of the counter affidavit filed on behalf of the State on 11th January, 2000

the affidavit whereof is sowrn by Sri Dhirendra Pratap Singh. He submits

that there the cadre strength has been described and the figures given

therein are totally incorrect and false. He submits that no determination

of vacancy was undertaken under the 1942 Rules that could have been

offered to such reserved category of internal candidates and realizing that

no such exercise has been undertaken, the State Government hurriedly in

a very novel manner introduced and notified the Rules dated 23rd July,

1990 which is neither in conformity with the 1942 Rules nor is it in

conformity with law. Otherwise also assuming that the said rules notified

on 23rd July, 1990 do confer some rights the same has been followed in

its utmost breach. The contention is that at one place the cadre strength

is described as 886 and another place the same swells to 1100 or odd. He

therefore submits that even if these figures are admitted it is not

understood as to how 2034 candidates have been extended the benefit of

regularization. He further submits that the description of creation of 773

supernumerary posts in the counter affidavit does not spell out as to

when these posts were so created. It is at this juncture that it is relevant

to mention that the appellant State has placed before us the notification

dated 6th August, 1990 indicating the existing and the posts that have

been created and described as supernumerary posts in the counter

affidavit.

The argument therefore is that having failed to determine the

correct number of vacancies and there being no posts available on 23rd

July, 1990, the entire process of regular appointment on the same date

30

that is 23rd July, 1990 is totally illegal and therefore it cannot confer any

status on such appointees to claim seniority as they are not part of the

cadre. Even otherwise, the word supernumerary used in the counter

affidavit itself is indicative of the fact that they are posts beyond the

cadre and therefore seniority would be available only for such candidates

who are within the cadre and not against supernumerary posts. It has

however been clarified by Sri Sudeep Seth at this stage that the word

supernumerary appears to have been loosely used in the counter affidavit

whereas the notification dated 6th August, 1990 creating the posts clearly

describes them to be temporary posts and therefore they be treated

accordingly and not as supernumerary posts.

Sri Tiwari taking a dig at this stand of the State submits that this

fact of the creation of the posts subsequent to the notification dated 23rd

July, 1990 was neither placed before the learned Single Judge nor has the

learned Single Judge taken notice of this fact but he has rightly arrived at

the conclusion that the seniority deserves to be redetermined treating

them to be promotees.

Sri Tiwari contends that if the posts itself were created much after

23rd July, 1990, then no benefits accrue to any of the appointees as the

word "available vacancy" is that for which no candidate had been

recommended by the Commission before the date of notification of the

rules. In the instant case, the notification dated 6th August, 1990

establishes that there were no posts available except the permanent

nature of posts indicated therein which was also not determined as per

Rule 11. In this unsure state it is obvious that at least the 773 additional

posts that came into existence for the first time on 6.8.1990 were not

there for being offered for appointment when the regularisation rules

were promulgated on 23.7.1990. Not only this, the said post creation

order also clearly prescribes that these appointees would be in addition to

the cadre strength and the posts would stand abolished as and when the

appointees enter a particular cadre.

Sri Tiwari therefore contends that it is only as and when such

candidates enter the cadre that they would be entitled to count their

seniority from such date and not from the date of their alleged regular

appointment on 23rd July, 1990. In this background, even though the

respondent-petitioners have been appointed through direct recruitment

later on between 1997 and 1999, yet they can challenge their placement

in seniority as against such candidates who are not even part of the cadre

and admittedly their status is beyond the cadre strength as indicated

hereinabove.

Sri Tiwari submits that under the 1990 Rules dated 23.7.1990

these persons may have been appointed and their appointment may not

be open to challenge but they have been kept alive without being born

into the cadre, particularly the 773 candidates who have been referred to

hereinabove. He therefore submits that the question of seniority hinges

upon the very factum of mode of a person entering into the cadre

through a regular appointment in accordance the rules against available

vacancies. Any illegal action of the State Government cannot enure any

benefit on such appointees as that would be putting a premium on the

government's illegal action. Such appointees according to Sri Tiwari will

continue to hold lien on their original posts till they are absorbed regularly

into the cadre. The notification dated 23rd July, 1990 does not therefore

confer any such right and this issue has to be gone into as a matter of

principle by this Court as well as by the State Government before

finalizing seniority. Sri Tiwary has then cited the following judgments to

support his submissions:-

1.(1996) 11 SCC 361; M.S.L. Patil, Asstt. Conservator of Forests,

31

Solarpur(Maharashtra) and others;

2.(1998) 6 SCC 630; C.K. Antony Vs. B. Muraleedharan and

others;

3.(2004) 10 SCC 734; Sanjay K. Sinha-II and others Vs. State of

Bihar and others;

4.(2009) 12 SCC 49; State of Rajasthan and others Vs. Jagdish

Narain Chaturvedi and others.

One more contention has been raised by Sri Anil Tiwari, namely

that the manner in which the selections are alleged to have been carried

out on the same day, it was not possible for a selection committee to

have interviewed or assessed their suitability in just one day. The State

issued letters of appointment on the same date when the 1990

Regulations were promulgated.”

30.It is also evident that the judgment passed by the coordinate Bench in

Special Appeal No. 31 of 2005 was challenged in SLP (C) No. 23254 of 2014, which

was also dismissed vide order dated 29.03.2017.

31.Vide impugned order dated 21.09.2017, learned Single Judge set aside the

seniority list dated 08.09.2015. The grounds taken by the respondent-petitioners

before the writ Court were that the directions issued by the Division Bench in

Special Appeal No. 31 of 2005 on 08.05.2015 were not complied with at the time

of preparation of seniority list, as also the Rule 9(2) of the Rules, 1991 was not

considered. Further prayer made in the writ petition was to place the respondent-

petitioners in the seniority list after serial no. 810.

Learned Single Judge vide impugned order dated 21.09.2017 observed that

there are two aspects of service laws, which have to be separately applied in the

facts of the case, one of which, is of regularisation and substantive appointment,

and the other is seniority. Both are governed by separate rules and both cannot be

confused and mixed with each other. It is also observed by the writ Court that an

incumbent has to be regularized or appointed on a substantive vacancy, and the

date on which he is regularized or appointed on a substantive vacancy, would be

the relevant date for his entry in the cadre and for fixation of his seniority. Once

the date of regularisation of substantive appointment in the cadre is fixed, the

same cannot be changed. The seniority has to follow the said date of regularization

and/or substantive appointment on a vacancy in the cadre. For the said purpose,

firstly an exercise for deciding the number of vacancies available for regularization

as per the Regularization Rules, 1990 ought to be calculated by the State

Government. The Rules, 1990 were initiated on 23.07.1990 and on this date, the

regularisation also took place. Thus, the vacancies, as per the provisions of the

aforesaid Rules have to be available on 22.07.1990. Learned Single Judge further

32

observed that on the said date, admittedly, a large number of LDAs were officiating

as UDA and were occupying the post of LDA, hence, the post, they were

occupying, cannot be considered as the vacant post at the time of regularisation of

officiating LDA. Learned Single Judge also observed that 2032 persons were

required to be regularised as LDA while the total number of posts available in the

cadre was 1235 and some of which were already occupied. Thus, even the entire

cadre strength was much less than the persons required to be regularised. It

would also not leave any vacancy available in the year 1991 or 1994 for being

requisitioned to Commission.

With the aforesaid observations, learned Single Judge set aside the seniority

list dated 08.09.2015 and directed the State Government to regularise LDAs on the

posts, as were available on 22.07.1990 and, accordingly, fixed their seniority on the

date of their appointment in substantive vacancy as directed by the Division Bench.

The relevant paragraphs of the impugned order are reproduced hereunder :

“21. The remaining vacancies of the cadre, which were not filled

up under the Regularization Rules, 1990, continued to be covered by the

Rules of 1942 and any selection and appointment to such vacancies could

be made only under the said Rules of 1942. The said vacancies cannot by

any interpretation of law, be filled up by Regularization Rules, 1990. This

interpretation is also supported by the action of the State Government

itself, that it took after coming into force of Regularization Rules, 1990.

The State Government by a requisition dated 19.3.1991 and 13.4.1994

itself requisitioned vacancies to the Commission for being filled up. Thus,

on the said dates, the State Government was of the view that only the

vacancies as existed on 22.7.1990 have been occupied by the officiating

Lower Division Assistants by way of their regularization. If the argument

of the respondents is accepted, then, all the vacancies available on

23.7.1990 would stand filled up and still there would be persons available,

required to be regularized under the Rules of 1990. Thus there would be

no vacancies available to be sent to the Service Commission in 1991. This

situation would arise as admittedly there are 2032 number of persons

required to be regularized as Lower Division Assistant while the total

number of post available in the entire cadre is 1235 (Both 804 permanent

and 431 temporary) some of which were occupied. Thus, even the entire

cadre strength was much less than the persons required to be

regularized. It would not leave any vacancy available in the year 1991 for

being requisitioned to the Commission. The State Government did not act

in that fashion. The State Government itself requisitioned vacancies to the

Commission. Hence what is being argued today is contrary to the action

of the State Government taken by it immediately after the Regularization

rules, 1990 were given effect to.

22. In the impugned order while fixing seniority persons have

been given regularization, from dates when there were no vacant

substantive posts available, contrary to the Regularization Rules, 1990

and the directions of the Division Bench. Thus, the impugned order dated

8.9.2015 cannot stand and is set aside. The State Government is directed

to regularize Lower Division Assistants on vacancies as were available on

22.7.1990 and accordingly, fix their seniority on the date of their

33

appointment in substantive vacancies as directed by the Division Bench.

In the remaining vacancies of the cadre, the appointments are required to

be made as per Rules, 1942 and the persons so appointed under the

rules, 1942 would also be given seniority on the basis of the date of their

appointment on the substantive vacancies under the said Rules.

23. Thus, following directions are issued to the State Government:-

(i) The State Government shall fix vacancies available for

regularization as per Regularization Rules, 1990 and the directions given

by the Division Bench prior to notification of Regularization Rules, 1990

i.e., on 22.7.1990.

(ii) Thereafter, the said vacancies available are to be filled up from

amongst the persons falling within the criteria of regularization under

Regularization Rules of 1990 as per the direction of the Division Bench.

Persons remaining to be regularized shall be kept in waiting list till the

vacancies become available, within the vacancies which were found on

22.7.1990, i.e., the vacancies under which persons can be regularized as

per Regularization Rules of 1990 and the order of the Division Bench.

(iii) As regards the remaining posts in cadre (the posts other than

those which are vacant on 22.7.1990), and after all the persons who are

to be regularized are given substantive appointments all future vacancies,

shall be filled up by appointment as per Rules of 1942 as amended from

time to time and after notification of U.P. Secretariat Ministerial Service

Rules, 1999 vacancies will be filled under said 1999 Rules.

(iv) Thereafter the State Government is to prepare the seniority

list on the basis of the date on which a person is given substantive

appointment in the cadre. The seniority is to strictly follow the date of

substantive appointment in the cadre.

The above two exercises are required to be held distinctly so that

no further confusion is created.

24. Since the matter is old, it is expected that the State

Government shall complete the exercise as per directions given above,

within a period of six months.

25. With the aforesaid directions, the present writ petitions is

allowed.”

32.Admittedly, the coordinate Bench in Special Appeal No. 31 of 2005 while

upholding the regularisation of the persons under Rules, 1990 vide order dated

23.07.1990, declared them as direct recruitees, but this fact was not properly

placed before the learned Single Judge.

It is undisputed fact that total sanctioned strength of the LDA was 1259

(808 permanent + 551 temporary). 681 post of LDA were vacant and 550 LDA

were working/officiating on the post of UDA on 22.07.1990. Total 28 substantive

LDAs were working and rest 2004 persons were working as officiating LDA. As on

22.07.1990, 550 LDAs working/officiating on the post of UDA. They were

regularised as UDA on 23.07.1990, therefore, 2004 persons, who were

officiating/working on the post of LDA were also regularised as LDA on 23.07.1990

34

against 1231 vacant posts of LDA (including 550 posts of LDA, who were officiating

as UDA and regularised on the said post on 23.07.1990). As on 23.07.1990, total

vacancies of LDA were 1231, but since 2004 persons were regularised/appointed

as LDA and 773 persons were regularised/appointed beyond the cadre strength,

therefore, 773 post of LDA were created vide Government Order dated 06.08.1990

with the intention to give the substantive appointment to 773 LDAs by extending

cadre strength temporarily.

It is also evident from the record that 773 posts were created vide

Government order dated 06.08.1990, therefore, 773 persons regularised under the

Rules, 1990 were entitled to get their seniority from 06.08.1990 and not before

this date. Admittedly, the issue of regularisation/recruitment of 2004 persons was

already decided by the coordinate Bench and the said judgment has also been

affirmed by the Hon'ble Apex Court in SLP (C) No. 23254 of 2014, hence, the same

cannot be re-opened. Thus, 1231 persons appointed under the provisions of Rules,

1990 read with Rules 1942 are entitled to get their seniority from 23.07.1990 and

remaining 773 persons are entitled to get their seniority from 06.08.1990 after

creation of post of LDA.

33.The coordinate Bench has already dealt the issue that 2004 persons

appointed under the provisions of Rules, 1990 are direct recruits, therefore, they

cannot be deprived from their seniority and they are entitled to get their seniority

from the date when the substantive posts were made available. The aforesaid view

of the coordinate Bench finds support from the judgments of the Hon'ble Apex

Court in the cases of Pramod Kumar Trivedi (supra), Union of India & Anr. Vs.

Dr. Akhilesh Chandra Agarwal (supra) and D.K. Reddy (supra), wherein the

Hon'ble Apex Court held that a person, even appointed against a supernumerary

post, is entitled to seniority from the date of his substantive appointment.

Further, all the vacancies created temporarily for recruitment of the

officiating LDA, come within the cadre, as has been held by the Hon'ble Apex Court

in the cases of J.S. Yadav (supra) and Union of India Vs. Puspa Rani (supra).

As the coordinate Bench also decided the issue in relation to the validity of

Rules, 1990 and appointment of the persons under the aforesaid Rules on the post

of LDA, the judgment referred by the learned counsel for the respondent-

petitioners in the cases of Prafulla Kumar Das (supra), Union of India Vs. S.

Krishna Murthy (supra), R.K. Sabarwhal (supra), Prem Singh (supra), Goan

Real Estate & Construction Ltd. (supra), Direct Recuirt Class II (supra),

35

Narinder S. Chadha (supra), Janak Dulari Devi (supra) and Bharat Singh

(supra), are not applicable in the present case.

34.It is also relevant to mention here that all these arguments placed before

this Court have already been dealt by the coordinate Bench and thereafter upheld

the validity of the recruitment under Rules, 1990.

35.Learned counsel for the respondent-petitioners failed to advance argument

on the point that as to how the issue of regularisation/appointment under the

provisions of Rules, 1990 can be reopened, when the same has already been

adjudicated and declared valid by the coordinate Bench in Special Appeal No. 31 of

2005. All the issues raised by the respondent-petitioners here in the present appeal

as also in the writ petition, have been dealt by the coordinate Bench in its

judgment dated 08.05.2015, in detail, which are reproduced hereunder :

The first question that has to be addressed to is the

maintainability of the writ petition filed by the respondent writ

petitioners challenging the seniority accrued in favour of those

LDAs, who were extended the benefit of the Regularization Rules

dated 23

rd

July, 1990. This is admitted that the respondent writ

petitioners were born into the cadre between 1996 to 1999. Thus,

when the said rules were promulgated and the benefit of

regularization was given under the rules dated 23

rd

July, 1990

coupled with the post creation orders on 6.8.1990, the

respondent-petitioners having not been born into the cadre, did

not have any occasion to raise any such challenge. This does not

mean that they are precluded from raising a challenge to the

seniority, if it affects them as and when they enter into the cadre.

At this juncture, one of the arguments advanced by Shri Prashant

Chandra deserves mention. His contention is that unless the very

regularization order dated 23

rd

July, 1990 is challenged, the

consequential seniority of such candidates also cannot be

challenged. For this, it is on record that there was no challenge

raised to the regularization order dated 23

rd

July, 1990 by the

respondent writ petitioners. They, after the disposal of the writ

petition and the pendency of the present appeal filed by the State

for four years in 2008 filed an amendment application seeking to

challenge the said regularization order on the ground of it being

invalid and contrary to the 1942 Rules.

This challenge to the validity of the Rules, 1990 now, at

this stage, cannot be permitted to be raised for several reasons.

The first is that the respondent writ petitioners even though

described the 23

rd

July, 1990, Rules to be unconstitutional in

Paragraph 8 of the writ petition yet no relief for quashing of the

same was prayed for in the writ petition. It was only the

consequential seniority the quashing whereof had been prayed. Sri

Jain, learned counsel for the petitioners contends that a challenge

having been pleaded, the Court can always mould the relief in

exercise of powers under Article 226 of the Constitution, which

powers continue with this Court in the present appeal, and it is for

this reason that an application for amending the relief further

praying for quashing of the same was moved in 2008.

36

We are unable to accept this plea primarily for the reason

that such an amendment is highly belated and that too even after

the writ petition was allowed in favour of the respondent-

petitioners. The writ petitioners did not file any appeal praying for

any further relief and they appear to have been satisfied with the

quashing of the seniority list. Thus there was no intention to

challenge the regularization rules dated 23

rd

July, 1990. The

statement of fact made in Paragraph 8 of the writ petition by itself

would not render a positive challenge raised without anything

further. The respondent writ petitioners after the writ petition was

allowed did not pursue this challenge at all and after four years of

the pendency of the appeal, as a respondent, have moved an

amendment application which otherwise cannot be entertained.

Thus for laches and for the aforesaid reasons, this relief as prayed

for to be moulded in their favour now cannot be considered on

behalf of the respondent writ petitioners. The regularised LDA's

have been conferred a benefit of regular appointment under the

1990 Rules and the same has become final it cannot be permitted

to be reopened.

There is yet another reason for the same. As noted above,

the validity of the said rules was also raised by those who were

contesting the seniority of UDA in Writ Petition No. 6200 of 1993

decided on 23

rd

July, 1990. Secondly, the process adopted for

selection and regular appointment under the said rules was also

agitated therein. The Division Bench in the aforesaid judgment has

answered the plea so raised by repelling the contentions and also

upholding entire selection process under the regularization rules of

1990 in the following terms:-

"As far as the contention of the Direct Recruits

regarding validity of Regularization Rules, 1990 is

concerned, it is misconceived, inasmcuh as,

Regularization Rules, 1990 derives its authority and

force from Article 309 of the Constitution of India,

hence it cannot be said that the rules are not

statutory. The State Government in exercise of power

under Article 309 of the Constitution, has been vested

with a power to frame the rules and there exists no

requirement to consult the Commission in that regard.

As far as next submission regarding the

regularization of the services of the promotees on the

same date when the rules came into force is

concerned, as well as that the record being not placed

before the Selection Committee etc. on behalf of the

State Government, it was vehemently argued by Mr.

Yogeshwar Prasad that the point raised before the

Court pertains to determination of the question of fact

which cannot be agitated upon because there is a

presumption in favour of the State action with regard

to its correctness and fairness. Question of

regularization was pending before the State

Government much earlier to 1990. The State

Government in that regard framed rules of

Regularization in the year 1989, itself. Although the

record of petitioners (promotees) services etc. were

prepared in advance even before the Regularization

Rules, 1989, but the services were regularized due to

certain defect pointed out in that rule. Thereafter,

Regularization Rules, 1990 were issued on 23.7.1990.

37

The charts which were prepared in advance on the

basis of the service record, were produced before the

selection committee and after due application of mind

the selection committee regularised the services of the

promotees.

We are of the view that this Court in exercise

of its jurisdiction under Article 226 of the Constitution

of India, cannot adjudicate upon such contentious

disputes. Hence, for that reason the regularization of

the promotees cannot be annulled. During the course

of arguments, a vain effort has been made to

challenge the Regularization Rules, 1990, but no

serious effort was made to assail the Rules, itself. As

pointed out earlier the State Govt. in exercise of its

power vested under Article 309 of the Constitution of

India, issued the Regularization Rules, 1990 which is

more or less similar to Regularization Rules, which

were subject matter of dispute before Hon'ble

Supreme Court in P.D. Agrawal (supra), which was

upheld by Hon'ble Supreme Court. The said rule

cannot be challenged on the ground of its being

violative of Article 14 and 16 of the Constitution of

India. Hence, we hold that the Regularization Rules,

1990 is valid and regularization made under the Rules

does not suffer from any legal or constitutional

defect."

The said judgment in its entirety, subject to a slight modification

for fitment, has been upheld by the Apex Court and accordingly so far as

the validity of rules and the selections by way of regularization has

already become final. We therefore sitting in a coordinate bench cannot

now reagitate or reopen the said issue when the said judgment has been

upheld by the Apex Court through a speaking order. The amendment

sought by the respondent writ petitioners in the present writ petition

stands rejected and it is held that the selections and regular

appointments under the Government Order dated 23rd July, 1990

has attained finality.

Apart from this, the State has threadbare laid its policy and has

assailed the decision of the learned Single Judge on the ground that the

learned Single Judge has wrongly treated the regularised LDAs as

promotees.

In the absence of any rule of promotion by way of officiation the

holding of a post on officiating basis cannot be termed as promotion.

Thus, this rule by itself does not confer a promotional status to an LDA if

he is regularised under Rules of 1990. To the contrary, the rules make it

clear that they shall be considered for regular appointment and not for

being promoted on the post in question.

This being the position of the Rules, 1990, either way, namely

under the Rules, 1942 or under the Rules, 1990, there is no rule for

promotion to the post of LDA. Thus, those who have been given regular

appointment under the Government Order dated 23rd July, 1990 as an

LDA, the same is only by way of appointment which is no promotion and

consequently reverting back to the definition contained in Rule 2(f) which

are the 1942 Rules applicable, the said recruitment through

regularization is direct recruitment and not promotion.

Once having held that the regularised Lower Division Assistants

are not promotees, the question that remains to be answered is as to

38

what rules of seniority have to be applied and in what manner? A perusal

of the determination of seniority dated 2.11.2000 and the rejection of the

representation on 21.11.2000 indicate a reference to the 1942 Rules and

to the U.P. Government Servant Seniority Rules, 1991. However, a mere

reference to the Rules without applying the same in terms of the entry of

an incumbent into the cadre does not appear to have been spelt out

categorically. We have already held that a person would be entitled to get

his seniority counted only from the date of entry into his cadre which in

turn would be dependent upon the availability of the vacancy against

which the incumbent has been appointed in accordance with the Rules.

The LDAs, who were regularised on 23.7.1990, were also extended

the benefit of seniority by virtue of Rule 7 of the said Rules of 1990

quoted hereinunder :-

"7. A person appointed under these rules shall be

entitled to seniority in accordance with the Service Rules and

for this purpose selection under these rules shall be deemed

to be selection under the Service Rules :

Provided that the inter-se seniority of the candidates so

appointed shall be the same as it was in the cadre from

which they were promoted on an officiating basis."

The said rule clearly indicates that seniority would be in

accordance with the Service Rules as the selections are under the Service

Rules. The word "Service Rule" has been defined under Rule 3(6) of the

Regularisation Rules to mean the Uttar Pradesh Secretariat Ministerial

Staff Rules, 1942. Rule 2 thereof specifically states that they shall have

effect notwithstanding anything to the contrary contained in any other

rules or orders. Thus, the seniority of those who were regularised under

the said rules in 1990 has to be determined as per Rule 46 of the Rules,

1942 upon determination of vacancy as per the 1942 Rules read with the

Seniority Rules, 1991. This determination of vacancy has however to be

calculated in accordance with the definition of the word "Available

Vacancy" contained in Rule 3(2) of the 1990 Regularisation Rules

extracted hereinunder :-

"(2) "Available Vacancy" means a Vacancy for which

no candidate has been recommended by the Commission

before the date of notification of these rules."

The word "Available Vacancy" has been defined to mean a vacancy

against which no candidate has been recommended by the Commission

before the date of notification of the said rules on 23.7.1990.

The vacancy has to be one which has been determined under Rule

11 of the 1942 Rules. Rule 11 of the 1942 Rules is extracted

hereinunder :-

"11. Number of vacancies to be filled - The

appointing authority shall annually ascertain the number of

vacancies available at the commencement of a year and also

those expected to occur during that year in the posts of

Upper Division Assistants, Translators, Lower Division

Assistants and Stenographers and accordingly intimate to the

Commission the number of vacancies intended to be filled on

the results of the examination or selection, as the case may

be, to be held that year, indicating also the number of posts

reserved in each category under rule 6 for candidates

belonging to Scheduled Castes."

In order to calculate the vacancy, therefore, one will have to go

39

back to the availability of the vacancy prior to the enforcement of the said

rule which vacancies have to be such so that a person can claim his

substantive appointment against such vacancy. The reason is that

seniority would be given only from the date of substantive appointment

against such a vacancy. This determination for all such candidates who

have been regularised will therefore have to be made by preparing a

separate chart indicating as to how and when the vacancy became

available.

This is necessary as the vacancies came to be created vide

Government Order dated 6.8.1990 apart from the vacancies which were

existing. The first thing therefore to be done is as to which were the

vacancies that were available on 23.7.1990. So far as their subsequent

adjustment is concerned, the same can only be from the date any

vacancy is made available. This peculiar situation has arisen because of

the fact that the regularisation rules have been enforced even prior to the

declaration of the vacancies on 6.8.1990 which do indicate the dates from

which they have been made available to the incumbents. The question is

that the available vacancy has to be against such a vacancy for which no

candidate had been recommended by the Commission before the

notification of the Rules. The criteria therefore again will have to be as to

whether the vacancy was available so as to cover the regularised

appointments envisaged under the notification dated 23.7.1990. It is only

then that seniority can be claimed by the incumbent under Rule 46 of the

1942 Rules read with Rule 7 of the 1990 Regularisation Rules.

There is one more aspect which has to be adopted while

determining seniority, namely, the determination of seniority on account

of the U.P. Government Servant Seniority Rules, 1991 coming into force.

This is necessary because the said Seniority Rules of 1991 came into

effect from 23.03.1991 and the seniority lists were prepared initially on

24.07.1991 and 25.07.1991. Thus, the Seniority Rules had come into force

by the time the seniority list had been issued. Consequently, the impact

thereof has also to be taken into account as the provisions of reservation

or of any other criteria mentioned in the said rules could not have been

ignored. The candidates, who came to be appointed on substantive basis

after 23.03.1991, their seniority would be governed by the Rules, 1991 as

they have an overriding effect over all other rules of seniority. This aspect

has also escaped notice of the learned Single Judge for modulating the

seniority in terms thereof.

Accordingly, the State Government will now have to undertake an

exercise in the light of the aforesaid principles and redetermine the

seniority as they would have an impact on the consequential benefits to

which the respondent-petitioners may be entitled or their adversaries

would be entitled as a result of such determination.

Having regard to the reasons given by us hereinabove, the

position that emerges is:-

1. That the respondent-petitioners did have a cause of action as

their objections vis-a-vis the seniority of those LDAs', who were

regularised vide order dated 23

rd

July, 1990 against posts created on

06.08.1990, adversely affected the respondent-petitioners with the

promulgation of the seniority list on 02.11.2000 and the rejection of the

representation on 21.11.2000. We further hold that the petition of the

respondent-petitioners is not barred by laches for all the reasons recorded

hereinabove nor have they delayed the filing of the writ petition as the

cause of action arose to them only after the lists and orders were issued

on 2.11.2000 and 21.11.2000 respectively.

2. The Division Bench judgment dated 2nd July, 1996 in the case

40

of U.P. Secretariat, UDA Association and 7 others Vs. State of U.P., Writ

Petition No. 6200 of 1993 as affirmed by the Supreme Court in the

decision in Special Appeal No. 25086 of 1996 decided on 27.1.1997 by the

Apex Court and reported in 1999 (1) SCC 278; U.P. Secretariat UDA

Association Vs. State of U.P. and others has attained finality as in relation

to Upper Division Assistants, subject to the direction issued by the

Hon’ble Apex Court to the effect that promotees are also required to be

fitted into service from the date when they are entitled fitment in

accordance with the quota and rota prescribed under the rules, but at the

same time the said judgment would not be an impediment for the

reasons given in our judgment hereinabove for determining the limited

issue of seniority of the Lower Division Assistants.

3. The status of the employees who have been regularized under

the Rules, 1990 and have been appointed under the post creation order

dated 6

th

August, 1990 are not promotees and can only be treated as

direct recruits for the reasons given in the judgment hereinabove. The

presumption raised and the finding recorded by the learned Single Judge

to that extent stands reversed.

4. In view of our findings and conclusions that the candidates,

who fall under the Rules, 1990 are not promotees and are direct recruits,

there is no reason to apply the quota and rota rule for promotees for

them.

5. For the reasons given by us hereinabove, we also hold that the

State Government has not been able to establish about any exercise of

having undertaken for determining the vacancies under Rule 11 of the

Rules, 1942 as per the cadre strength defined under the rules. This

exercise will also have to be undertaken to first determine the vacancies

that are available in Rule 3(2) of the Rules, 1990 in order to determine as

to whether the appointments by way of regularization have been offered

against the substantive vacancies available with regard to which no

candidate had been recommended by the Commission before the

notification of the said rules on 23

rd

July, 1990. The argument of the

learned counsel for the respondent-petitioners that in order to claim

seniority those who have been regularized, their induction into the cadre

and date of entry upon being appointed in a substantive capacity against

a substantive vacancy has to be determined before extending to them the

benefit of seniority, is accepted.

6. For this the status of post creation or availability of the post in

the cadre, the vacancies determined as per rules and then the placement

according to the date of substantive appointment will have to be

determined.

7. So far as those who have been extended the benefit of 15%

promotion from the post of Group-D/Class IV Employees, their status

stands determined by the introduction of sub-rule (4) of Rule 14 of the

1942 Rules as introduced on 5.11.1990 and therefore they have to be

allocated their space as per their appointment under the aforesaid

provision.

In view of the conclusions drawn hereinabove and the reasons in

support thereof, we allow Special Appeal No. 31 of 2005 and set aside the

judgment dated 6th August, 2004 but at the same time we also grant

relief to the writ petitioners to the extent of allowing the writ petition and

quashing the final seniority list dated 2nd November, 2000 as well as the

rejection of the representation of the writ petitioners vide order dated

21st November, 2000. All consequential action taken pursuant to the

judgment dated 6.8.2004 would also stand annulled including the

seniority list dated 21.10.2005.

41

As a consequence of the aforesaid relief having been extended,

we further clarify that the seniority list of the LDA shall be redetermined

in the light of the observations made hereinabove and the principles that

have been spelled out in this judgment as well as the rules and

regulations applicable as per the law prescribed and after the exercise is

completed, the list of 24.07.1991 and 25.07.1991 would stand modified

accordingly if necessary as a fall out of such exercise. This exercise shall

be undertaken by the State Government and concluded preferably within

a period of three months and till such exercise is concluded no fresh third

party rights should be created till finalization of the seniority as per this

judgment. So far as the consequential action taken by the State

Government pursuant to the impugned judgment dated 6th August, 2004

is concerned, since the judgment has been set aside, any action taken on

the strength thereof also falls through.

36.In view of above, the controversy in relation to the appointment of the

persons on the post of LDA under the provisions of Rules, 1990 has already been

decided by the coordinate Bench of this court vide order dated 08.05.2015, which

has also been upheld by the Hon'ble Apex Court.

37.Thus, it is crystal clear that the issue of appointment/regularisation of 2004

persons on the post of LDA vide Government order dated 23.07.1990 has already

been decided by the coordinate Bench and declared all the aforesaid appointee as

direct recruitee. The coordinate Bench also found that on 23.07.1990, since 1231

substantive vacancies of LDA were available and 773 temporary posts of LDA were

created vide Government Order dated 06.08.1990 with the consent of Finance

Department dated 03.08.1990, therefore, said 773 LDAs are entitled to seniority

from 06.08.1990 and not from 23.07.1990.

As the respondent-petitioners are appointed against the U.P. Secretariat

Upper/Lower Division Clerks Examinations 1991 & 1995, in pursuance of

requisition of State Government dated 19.03.1991 and 13.04.1994, therefore, they

are entitled for their seniority from the date of their appointment as per Seniority

Rules, 1991.

It is well settled by the Hon'ble Apex Court in the case of K. Meghachandra

Singh & Ors. Vs. Ningam Siro & Ors., 2020 (5) SCC 689 that the seniority will

be given from the date when the employee born in the cadre, therefore, the

persons appointed in pursuance of the requisitions dated 19.03.1991 and

13.04.1994, cannot be placed above the persons appointed in the year 1990. The

relevant part of the judgment is reproduced as under :

“30. We may also benefit by referring to the judgment in State of

U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava,

(2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] . This judgment is

significant since this is rendered after the N.R. Parmar [Union of Indiav.

N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] decision.

42

Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Singh

[Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC

(L&S) 481] , and concurred with the view that seniority should not be

reckoned retrospectively unless it is so expressly provided by the relevant

Service Rules. The Supreme Court held that seniority cannot be given to

an employee who is yet to be borne in the cadre and by doing so it may

adversely affect the employees who have been appointed validly in the

meantime. The law so declared in Ashok Kumar Srivastava [State of U.P.

v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536]

being the one appealing to us, is profitably extracted as follows : (SCC p.

730, para 24)

“24. The learned Senior Counsel for the appellants has

drawn inspiration from the recent authority in Pawan Pratap

Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh,

(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] where the

Court after referring to earlier authorities in the field has

culled out certain principles out of which the following being

the relevant are produced below : (SCC pp. 281-82, para 45)

‘45. (ii) Inter se seniority in a particular service has to be

determined as per the service rules. The date of entry in a

particular service or the date of substantive appointment is

the safest criterion for fixing seniority inter se between one

officer or the other or between one group of officers and the

other recruited from different sources. Any departure

therefrom in the statutory rules, executive instructions or

otherwise must be consistent with the requirements of

Articles 14 and 16 of the Constitution.

***

(iv) The seniority cannot be reckoned from the date of

occurrence of the vacancy and cannot be given

retrospectively unless it is so expressly provided by the

relevant service rules. It is so because seniority cannot be

given on retrospective basis when an employee has not even

been borne in the cadre and by doing so it may adversely

affect the employees who have been appointed validly in the

meantime.’ ”

Admittedly, the aforesaid facts were not considered at the time of issuing of

seniority list of LDA dated 08.09.2015.

38.As it is evident that on 23.07.1990, only 1231 posts of LDAs were available,

but 2004 persons officiating as LDA were appointed under the Rules, 1990, i.e.,

773 persons were appointed beyond the sanctioned strength, therefore, 773

temporary posts of LDA were created on 06.08.1990, thus, we hereby hold that

the said 773 persons are entitled for seniority from 06.08.1990. We further hold

that persons appointed against the Examinations 1991 & 1995 are entitled to get

their seniority as per Rules, 1942 read with Seniority Rules, 1991.

39.In view of facts and discussions made above, impugned order dated

21.09.2017 passed in Writ Petition (S/S) No. 5828 of 2015 (Dr. Kishore Tandon &

Ors. Vs. State of U.P. & Ors.) along with connected Writ Petition (S/S) No. 12598 of

43

2017 (Hari Shankar Nath Tiwari & Ors. Vs. State of U.P. & Ors.) is hereby set aside

with all consequentials. Seniority list dated 08.09.2015 in relation to 773 LDAs who

were adjusted against the post creation order dated 06.08.1990 and the LDAs

appointed in pursuance of Requisition dated 19.03.1991 onwards, is also hereby

quashed.

The special appeals stand allowed.

40.State Government is directed to prepare the seniority list of Assistant Review

Officer (earlier known as LDA) in the light of the observations made hereinabove

and as per the prescribed law, within four months from today.

41.The party shall file computer generated copy of order downloaded from the

official website of High Court Allahabad, self attested by it alongwith a self attested

identity proof of the said person(s) (preferably Aadhar Card) mentioning the

mobile number(s) to which the said Aadhar Card is linked, before the concerned

Court/Authority/Official.

42.The concerned Court/Authority/Official shall verify the authenticity of the

computerized copy of the order from the official website of High Court Allahabad

and shall make a declaration of such verification in writing.

(Rajeev Singh, J.) (Ramesh Sinha, J.)

Dated : June 2, 2021

VKS