Surendra Vikram Singh vs State Of U.P.Through Prin. Secy. ...
2011 Latest Caselaw 6308 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SERVICE BENCH No. - 1468 of 2011
 

 
Petitioner :- Surendra Vikram Singh
 
Respondent :- State Of U.P.Through Prin. Secy. Appointment Deptt. Lko.And
 
Petitioner Counsel :- Ashwani Kumar,Adarsh Saxena
 
Respondent Counsel :- C.S.C.,Manish Kumar
 

 
Hon'ble Pradeep Kant,J.

Hon'ble Surendra Vikram Singh Rathore,J.

Heard Sri S.K.Kalia, learned Senior Advocate, assisted by Sri Adarsh Saxena, counsel for the petitioner, Sri Manish Kumar, learned counsel for the High Court and learned standing counsel appearing for the State.

The petitioner, who was initially appointed as Munsif on 5.11.1979, belongs to 1977 batch of U.P.Nyayik Sewa (hereinafter referred to as UPNS), was promoted as Civil Judge (Senior Division) in the year 1996. During the year 1994-95, he was communicated an adverse entry when he was posted as Civil Judge (Senior Division) at Moradabad. He made a representation against the said adverse entry but the same was rejected on 14.3.1997, aggrieved by which he preferred a writ petition bearing no. 41334 of 1997, which was disposed of on 6.12.2000 with a direction to the respondents to decide the representation of the petitioner keeping in view the observations of the Division Bench and the Hon'ble Supreme Court in the case of Hon'ble High Court of Judicature at Allahabad versus Sarnam Singh and another, reported in 2000(2) SCC 339.

In the meantime, when the aforesaid writ petition was pending, the batch mates of the petitioner were considered for officiating promotion under Rule 22(3) of the U.P.Higher Judicial Services Rules, 1975 (hereinafter referred to as the UPHJS Rules), but the petitioner was not recommended for promotion by the Selection Committee because of the aforesaid adverse entry. He was again not recommended for promotion by the Selection Committee on 27.3.2000 because of the said adverse entry. He was also having 'fair' entries for four successive years.

The writ petition preferred by the petitioner, as referred to above, was decided on 6.12.2000 and thereafter the Administrative Committee of the High Court resolved on 27.4.2001 that the remarks of the Inspecting Judge for the year 1994-95 be not taken into account while considering his promotion. The selection committee thereafter approved the petitioner for officiating promotion vide resolution dated 18.8.2001 and he was promoted vide High Court's notification dated 30.10.2001 under the provisions of Rule 22(3) of the UPHJS Rules.

After the petitioner was given officiating promotion in U.P.Higher Judicial Service, he was considered for regular promotion and was given such promotion on 13.4.2005. The notification in this regard was issued on 17.5.2005. In this Government notification promoting the petitioner under Rule 22(1) of the UPHJS Rules alongwith his batch mates, he was rightly placed as per his seniority position.

It was thereafter on 3.3.2011 that the first tentative seniority list of the officers of UPHJS cadre was published. In this list, the petitioner was again rightly placed at serial no. 455 i.e. in between Mr. Rakesh Kumar at serial no. 454 and Mr. Gyan Chandra at serial no. 456. Subsequently, on 18.5.2011, revised tentative seniority list was published, in which the petitioner was placed at serial no. 678 whereas Mr. Rakesh Kumar was placed at serial no. 451 and Mr. Gyan Chandra at serial no. 452. This necessitated a representation by the petitioner against the revised tentative seniority list, which was made on 30.5.2011, wherein he requested that his seniority be restored at due place i.e. above Mr. Gyan Chandra and below Mr. Rakesh Kumar.

Besides the petitioner, several other officers who were similarly circumstanced and were pushed down in the revised tentative seniority list, also represented their cases and in the final seniority list, they were given their due places. The petitioner was, however, denied the said relief.

Later on, final seniority list was published alongwith the seniority committee report, from where it revealed that the petitioner's representation has not been accepted and his place in the seniority list remains unchanged.

The placement so made in the seniority list of UP HJS officers has given a cause of action to the petitioner to approach this Court under Article 226 of the Constitution of India.

Learned counsel for the petitioner has submitted that the principle applied in the case of the petitioner for denying him the benefit of seniority with effect from the year 1999 i.e. when the persons junior to him belonging to his batch were given seniority, is not based on any rational and fair criteria; rather this is against the rules which govern the seniority.

His further submission is that by no stretch of imagination, merely because there were four successive 'fair' entries after the adverse entry for the assessment year 1994-95, which were never communicated to the petitioner, he could have been pushed down in the seniority list on the ground that he was superseded in officiating promotion, not because of the adverse entry of 1994-95 alone but looking to the entire record which included four fair entries awarded to him successively.

In support of his above submissions, learned counsel for the petitioner has relied upon Dev Dutt versus Union of India and others (2008) 8 SCC 725, U.P.Jal Nigam versus S.C.Atri and another (1999) 1 SCC 241 and R.K.Singh versus State of U.P. & others 1991 Supp. (2) SCC 126.

Sri Manish Kumar, appearing for the High Court has vehemently urged that the petitioner was since superseded in officiating promotion and his service record was found bad by the Full Court where he was found not fit for promotion, he cannot claim restoration of his seniority alongwith his batch mates of 1997 and in other words, from the year 1999.

Sri Manish Kumar has also drawn our attention to the criteria fixed by the Seniority Committee for awarding seniority to the UPHJS officers, who were first given ad hoc officiating promotion and were subsequently given regular promotion, wherein such officers were allowed the benefit of officiating promotion and were given seniority from the date of their officiation.

The Seniority Committee laid down the criteria for determining the seniority of those officers, who were given ad hoc promotion and were promoted on regular basis while working on officiating promotion and also of those officers who could not be given officiating promotion because of the adverse entries, but were subsequently promoted when adverse part of their service record was expunged.

In fact, the following criteria was adopted by the Seniority Committee for determining seniority of three sets of officers, after observing that there are certain principles on matters not specifically covered by Rule 26 of 1975 Rules; viz.

" (A) Under Rule 26 (before 15.3.1996), for D.Rs., the reckoning point of seniority is the date of joining but a few days difference in the matter of joining of D.Rs., appointed by same order, amongst themselves, would not disturb their position inter se. This principle was followed by earlier Seniority Committee which has attained finality. Same principle would be followed this time also. Therefore, amongst D.Rs., we maintain their inter se position as per their merit position and order of appointment. A few days difference, either way n the matter of joining would make no difference.

(B) Similarly in the matter of promotee Officers also, all appointed on substantive vacancies by a common appointment order, in case of minor variation in d ate of continuous officiation of such Officers, on account of difference in joining, their inter se seniority has also not been touched and is in tact as it was in feeder cadre, i.e., in order of their appointment. This was the principle followed while preparing earlier seniority list dated 6.5.1992.

(C) The earlier seniority committee headed by Dr. B.S.Chauhan, J. (as His Lordship then was) in regard to issue-3 took a decision that D.Rs., who could not join on account of interim orders will be entitled for seniority from the date of passing restraining order. In respect to Issue-3 also relating to D.Rs of 1984 recruitment, the committee decided, where appointments are delayed due to fault on the part of Government, no benefit would be given but where the appointments were delayed due to orders of Court, they may be given benefit of decision taken in issue but confined to the date the person higher in merit was appointed.

(D) In our second TR having taken the decision that continuous officiation upto the date when an Officer was found unfit for promotion on substantive basis would not be given any consideration for seniority, we received some representations from affected Officers amongst 58 total representations we have received. We find from the analysis of aforesaid objections and other record that there are three types Officers:

(i)First, those, who were initially approved for officiating appointment and given such appointment, thereafter in their turn approved for substantive appointment and given such appointment. There is no difficulty in respect to such Officers, if they are governed by pre-amended Rule 26 of 1975 Rules to reckon their seniority from the date of the continuous officiation and the vacancy available in their quota, whichever is later.

(ii)Second, the Officers approved for officating appointment, given such appointment, but in their turn once or more disapproved for substantive appointment under Rules 22(2) but continued to officiate and later on approved for substantive appointment. These Officers have demanded that their seniority should remain unaffected and even if the members of UPNS junior to them have superseded at the time of substantive appointment, but ultimate approval shall restore seniority and they would not be affected in any manner.

(iii)Third, those approved for officiating/ad hoc promotion but could not be so promoted for any reason, may be on account of some inquiry etc., rejected for promotion on ad hoc basis and ultimately given only substantive appointment when the above inquiry resulted in exoneration or the other reason disappeared, like expunction of adverse entry etc.

(E) So far as the Officers in first category is concerned, as already noticed, there is no difficulty. So far as second category Officers are concerned, we find the proposition difficult to accept that they can be allowed to reckon their seniority from the date of continuous officiation. It is true that under Rule 26, the reckoning point of seniority for promotees is the date of continuous officiation and the date of availability of vacancies within their quota, but when they are found unfit for promotion on substantive basis in their turn and juniors are promoted on substantive basis superseding them, the vacancies are provided earlier in pointy of time to the juniors approved for substantive appointment when senior is rejected. Therefore, the later approval would not result in automatic restoration of seniority from the date of association so as to score a march over juniors who had already superseded the senior Officer for substantive appointment. Any other view would amount to treating unequals as equal. Rule nowhere provides that an Officer superseded for substantive appointment by his juniors can restore his seniority due to later approval. To adjust equity amongst all the Officers so as not to nullify effect of supercession in substantive appointment, officiation of superseded Officers would count from one day later than the last rejection for promotion and immediately preceding approval for promotion on substantive basis.

(F) There may be some Officers who were found unfit on account of some punishment or adverse entry etc. which subsequently disappeared, may be on account of some judicial order or in appeal or representation on the administrative side resulting in vanishing the very basis on account whereof the incumbent was superseded. IN such cases, as we have already decided earlier, following the decision on similar aspect by earlier committee also such Officers, if approved in following selection, would restore their position back over their juniors.

(G) In this regard, we have followed the decision of earlier Seniority Committee headed by Hon'ble S.D. Agarwal, J. in finalizing 1992 S.L. (see para 83(e) of this report where it said that the Officers who were not given promotion under Rule 22(3) or 22(4) due to any adverse entry or enquiry pending against them, which has subsequently been wiped out, seniority of such officers shall be counted from the date next junior member of UPNS or JOS, as the case may be, of their batch who were promoted to the service prior to them started officiation). This principle was also followed by the later Seniority Committee headed by Dr. B.S.Chauhan, J. (as his Lordship then was) and was never disputed earlier or before us.

(H) Now comes third category. The Officers considered in their turn for officiating appointment or subordinative appointment but the consideration was deferred, may be for non completion of record of A.C.R. Or otherwise, vacancies kept reserved and subsequently they were approved and promoted. In such cases, these officers shall be assigned seniority from the date their next junior I UPNS has been assigned seniority inasmuch such Officers were neither ever superseded nor denied officiating appointment nor have been otherwise allowed to suffer. The Court kept the vacancy reserved and, therefore, in the matter of seniority also they cannot be allowed to suffer."

So far as the petitioner is concerned, the Seniority Committee observed as under:

"227. Sri Surendra Vikram Singh, a quite senior in UPNS made representation for not providing him seniority at his due place alongwith his juniors in UPNS. In the tentative seniority list circulated with our Second TR he has been placed at Sl. No. 678. In his representation he has said that he belongs to 1977 batch of UPNS appointed on 05.11.1979 and promoted as Civil Judge (Senior Division) on 20.02.1990. From his report we find that he was awarded an adverse entry in 1994-95 to the following effect:

			"Disposal adequate being 202 per cent.  The officer enjoyed 		a stinkingly bad reputation as revealed in my surprise inspection 			made incognito on 18th of April, 1995.  the remarks of the District 			Judge in the 	annual confidential report for the year 1994-95 			affirmed.
 
			Assessment of judicial performance adjudged 'very poor' on 		the basis of my inspection note for the year 1994-95.
 
			Integrity doubtful."
 

 

228. His integrity was also assessed as doubtful. His representation against the aforesaid remark was also rejected on 14.03.1997. He filed Writ Petition No. 41334 of 1997 seeking a writ of certiorari for quashing the aforesaid adverse remark. Vide judgment dated 06.12.2000 this Court partly allowed his writ petition required for reconsideration of his representation against the aforesaid adverse entry in the light of decision of the Apex Court in High Court of Judicature at Allahabad Vs. Sarnam singh and another, 2000(2) SCC 339. Direction issued by this Court reads as under:

			"In view of what has been stated above, the writ petition 			succeeds partly and is allowed in part.  The respondents are 			directed to decide the 	representation of the petitioner keeping in 			view the observations of the Hon'ble Division Bench and the 			Hon'ble Supreme Court in Sarnam Singh case and dispose if of 			afresh.
 
			The parties will bear their own costs."
 

 

229. In the meantime, the selection committee considered him for promotion in UPHJS and vide report dated 18.05.1998 solely on the basis of adverse entry awarded for 1994-95 did not recommend him and this report was accepted by Full Court on 11.07.1998. Again he was considered by selection committee and vide report dated 27.03.2000 it did not recommend Sri Surendra Vikram Singh for promotion referring not only adverse entry of 1994-95 but also referring to his performance in the subsequent four years as is evident from the following:

"In the year 1994-95 he was rated to be a very poor officer and his integrity has been assessed as doubtful. He made two representations but th same were rejected on 14.03.1997 and 16.08.1997 respectively. Challenging the entry for the year 1994-95 he has filed Civil Misc. Writ Petition No.41334/1998 whch is pending but there is no interim order staying the operation of the adverse entry. However, in the successive four years he was assessed to be merely a fair officer. Therefore he is not recommended for promotion."

230. This report was also accepted by Full Court vide resolution dated 09.04.2000 and Surendra Vikram Singh was not recommended for promotion. After the decision of Court vide judgment dated 06.12.2000 the representation of Surendra Vikram Singh was considered by Administrative Committee in its meeting dated 27.04.2001 and it resolved as under:

"Resolved that the remarks made by the inspecting judge against the officer for the year 1994-95 be not taken into account."

231. Thereafter, the Full Court approved him for promotion vide resolution dated 18.8.2001. It is evident that, his supercession vide Full Court resolution dated 9.4.2000 was not solely on account of adverse entry of 1994-95 but also in the light of his performance adjudged as merely a "fair officer" in the successive four years. Therefore, our decision that if the sole basis disappear, the incumbent shall be restored to his position would not apply to the case of Surendra Vikram Singh. We are also informed that while considering the Officers for promotion in HJS,m mainly preceding five year entries used to be considered by the Court and, therefore, the subsequent entries being available in respect to officer concerned which are considered when he is recommended for promotion in later year would not entitle him for restoration of his position. It will apply only when he is superseded on the basis of something which ultimately disappeared but if there is anything more then the aforesaid logic will not apply."

A perusal of the criteria adopted by the Seniority Committee for determining the seniority of the petitioner shows that the reason for not giving him the seniority, which he was claiming, is that though the adverse entry of the year 1994-95 was not taken into account while making his promotion on officiating basis, but he was superseded not because of the said adverse entry alone but also because of the four 'fair' entries awarded to him in four successive years.

Needless to mention that seniority is governed by Rule 26 of the UPHJS Rules, which reads as under:

"26. Seniority.- (1) Seniority of the officers appointed in the service shall be determined in accordance with the order of appointment in the Service under sub-rules (1) and (2) of Rule 22 of these Rules.

(2) Seniority of members of the service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of the Government as amended from time to time."

The appointment is dealt with under Rule 22 of the aforesaid Rules.

The Seniority Committee has kept the petitioner's case in third category but has refused seniority for the aforesaid reason. Here, it is worthwhile to consider the plea of the petitioner that firstly, the successive four fair entries after adverse entry for the year 1994-95 could not be treated as adverse nor were they adverse; secondly, had these entries been taken as adverse, they ought to have been communicated to the petitioner, which was never done; thirdly, any entry which had not been communicated to the petitioner, could not be considered as adverse nor could be taken into consideration while making promotion, and lastly, when the petitioner was given officiating promotion on 30.10.2001 after the directive issued by the High Court in the writ petition preferred by him, these four 'fair' entries were on record and in the presence of these four 'fair' entries he was given officiating promotion simply ignoring the adverse entry of 1994-95. Submission is that these four fair entries were neither taken to be adverse nor against the petitioner for the purposes of officiating promotion; rather, after expunction of the adverse entry of 1994-95, the Selection Committee did not find anything adverse so as to deny the petitioner the officiating promotion and for that reason he was given officiating promotion.

Thus, if the petitioner was given officiating promotion on the basis of existing material including the four successive 'fair' entries, it cannot be said that he would not be entitled to restoration of his seniority merely because at the time of officiating promotion, there were four 'fair' entires as observed above. At the time of promotion, the entire record, which is relevant for the purpose, remains under scrutiny and if the selection committee finds that there is anything adverse on record, may be adverse entry or any restraint order or any such factor which prohibits such promotion to an officer, the selection committee would not make his promotion, but on consideration of entire record if promotion is made, then it would not be open later on to suggest that the promotion has been made but the adverse material still is to be taken into consideration while determining his seniority.

Admittedly, the four fair entries were never communicated to the petitioner; therefore, he could not get a chance to make any representation against them. He was given officiating promotion after ignoring the adverse entry for the year 1994-95 but in the presence of four 'fair' entries awarded to him in the successive four years.

The observation of the Seniority Committee that the petitioner was superseded in officiating promotion not only because of the adverse entry of 1994-95 but also because of the four successive fair entries, is not borne out from record for the reason that when the said adverse entry was ignored, he was given officiating promotion in the presence of same very four 'fair' entries. Thus, the 'fair' entries were not taken as a bar or obstacle for giving promotion to the petitioner in UPHJS cadre on officiating basis.

It is significant to note that when the petitioner was promoted on regular basis on 13.4.2005, he was placed rightly as per his seniority position and also in the first tentative seniority list, he was given the correct position, but in the second tentative seniority list, his position was changed and he was pushed down and despite representations made he was not given due place in the final seniority list also which was published later on.

Grant of officiating promotion immediately after the expunction of the adverse entry of 1994-95 in the presence of four 'fair' entries itself reveals that the officiating promotion of the petitioner was earlier denied only because of the adverse entry and not for 'fair' entries.

Once at the time of regular promotion, the petitioner was placed at the proper place in the seniority list, there was hardly any occasion to disturb his seniority at the time of issuing second tentative seniority list and that too on a ground which was non-existent..

As per the own criteria/principles determined by the Seniority Committee, this was a case which will fall in the third category viz. where the officiating promotion was denied because of the presence of the adverse entry, which entry was not to be taken into account and consequently the officiating promotion was given. The Seniority Committee in its criteria has observed that for such officers, the seniority position would be restored back. That being so, we do not find any reason as to why the petitioner should be denied his seniority to which he was entitled otherwise.

For the reasons aforesaid, we allow the writ petition and direct that the petitioner shall be given his original seniority and shall be placed in between Mr. Rakesh Kumar and Mr. Gyan Chandra, who have been placed at serial nos. 451 and 452 in the final seniority list of UPHJS officers cadre. Let the seniority list dated 18.5.2011 be corrected accordingly.

5.12.2011

LN/-