Umesh Chandra Srivastava & Others vs State Of U.P. & Others
2012 Latest Caselaw 2724 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgement reserved on 03.05.2012
 
Judgement delivered on  06.07.2012
 
Case :- WRIT - A No. - 46612 of 2008
 
Umesh Chandra Srivastava & another Vs. State of U.P. and others 
 

 
CONNECTED WITH 
 

 
WRIT - A No. - 47084 of 2008: 
 
Ram Kumar Srivastava Vs. State of U.P. and others
 
AND
 

 
WRIT - A No. - 10705 of 2008: 
 
Umesh Chandra Srivastava Vs. State of U.P. and others 
 
..................
 
Hon'ble Sheo Kumar Singh,J.

Hon'ble Arvind Kumar Tripathi (II),J.

(Delivered by Hon. Arvind Kumar Tripathi, J.)

1. All the aforesaid writ petitions are connected to each other. The submissions are also the same; hence they are being decided together.

2. Writ Petition No. 46612 of 2008 has been filed by Umesh Chandra Srivastava for a direction in the nature of certiorari quashing the seniority-list, published by the District Judge, Kanpur Nagar, on 28.8.2008, along with other reliefs.

3. Writ Petition No. 47084 of 2008 has been filed by Ram Kumar Srivastava with a prayer that the direction dated 29.8.2008, for holding the test for appointment on the post of Sadar Munsarim passed by the Addl. District Judge I/Administrative In-charge, Kanpur Nagar, be quashed and also with a prayer that respondents be directed to promote the petitioner on the post of Sadar Munsarim.

4. Writ Petition No. 10705 of 2010 was filed as during the pendency of W.P. No. 46612 of 2008: Umesh Chandra Srivastava and others Vs. State of U.P. and others, praying for the quashing of the seniority-list published by the District Judge on 28.8.2008, Suresh Chandra Awasthi was promoted to the post of Senior Administrative Officer, whereas Umesh Chandra Srivastava was confirmed as Sadar Munsarim. A prayer was also made to quash the order dated 20.2.2012 passed by the District Judge, Kanpur Nagar, as well as the report of the committee dated 19.2.2010 and also for a direction in the nature of mandamus commanding the respondent not to give effect to the impugned order referred to above.

5. Brief facts of all the writ petitions are that in the year 1973 selection proceedings were conducted for recruitment of the ministerial employees in the lowest category in the District Judgeship of Kanpur Nagar and Umesh Chandra Srivastava, Anant Kumar Shukla and Suresh Chandra Awasthi and others were the applicants. The select list was published after the finalisation of the selection proceedings in which a total of 30 candidates stood selected for appointment, including the petitioners, namely, Umesh Chandra Srivastava and Anant Kumar Shukla. In this select list Suresh Chandra Awasthi was placed at serial no. 4 while Umesh Chandra Srivastava and Anant Kumar Shukla were placed at serial nos. 10 and 20, respectively. In pursuance of the aforesaid select list dated 23.04.1973 all were granted initial appointment as copyist and they all, along with the other candidates, joined as copyist. Immediately after the selection and appointment as copyist, Suresh Chandra Awasthi was deputed to work as fast typist in the court of JSCC, Kanpur Nagar by the order of the District Judge, Kanpur Nagar dated 15.05.1973 After that Suresh Chandra Awasthi moved an application before the District Judge, Kanpur that he be sanctioned the pay-scale of stenographer, instead the pay-scale of copyist and be permitted to work as such. He gave two applications dated 15.11.1973. On the application dated 15.11.1973, the District Judge, Kanpur Nagar, passed the following order on 30.11.73 to enquire that whether:

"(i) If he is prepared to give up his claim in the regular line;

(ii) If he is prepared to undergo the test for recruitment of Stenographer."

6. In pursuance of the aforesaid order, Suresh Chandra Awasthi replied that he is not willing to give up his lien in regular line and he has no objection for test and, thereafter, Suresh Chandra Awasthi appeared in a stenography test. On the basis of his performance in the stenography test, and, in view of the shortage of stenographers in the Judgeship, an Addl. District Judge, Kanpur Nagar, submitted a report dated 2.2.1974 to the District Judge, Kanpur, recommending that the respondent may be treated as a proper candidate for being appointed as a stenographer. On this recommendation, the District Judge, Kanpur Nagar, passed the following order on 2.2.1974:

"Seen. He may be enlisted as an approved Stenographer and posted as such as and when any vacancy arises."

7. After that Suresh Chandra Awasthi was given the post of acting stenographer in the court of Additional JSCC, Kanpur vide District Judge's order dated 01.03.1974.

8. On 14.12.1981, an application was submitted by Suresh Chandra Awasthi to the District Judge to the effect that on account of continuous typing work he was suffering pain in his chest and felt difficulty in further performing the work of typist and prayed for absorption in the regular line according to his seniority. On this application, a report was submitted by Munsarim dated 30.7.1982 for consideration of the District Judge, in which it has been mentioned that he had been confirmed on the post of stenographer and his lien on the regular line stood terminated as he has acquired lien on the post of stenographer. It is also mentioned in the report that 14 officials junior to him had been confirmed and in case respondent no. 5 was permitted to revert to the regular line, the same would entail reversion or de-confirmation of other employees. On the aforesaid report, the then District Judge passed the following order on 30.7.82:

"Seen. Let the applicant be reverted to regular line as proposed.

9. On 19.8.1982, another report was submitted by the Munsarim to the effect that the reversion of respondent to the regular line may be directed upon the availability of permanent vacancy in the regular line and, till then, he should be directed to continue as stenographer. This report was accepted by the District Judge and suitable orders were passed.

10. On 21.10.1982, another report was submitted by the Munsarim pointing out that 14 officials, junior to respondent no. 5, had been confirmed on their post in higher pay-scale and 59 officials in the pay-scale of Rs. 354 - 550 and 8 officials on the fixed pay of Rs. 350/-. The Munsarim reported that the question remained: as to whether seniority of Suresh Chandra Awasthi be fixed below the name of Ravi Kumar Srivastava or below the name of Pulkit Narain Jha, who is the last candidate in the pay-scale of Rs. 430 - 685; or below the name of other 59 officials confirmed in the pay-scale of Rs. 354 - 50. On this report, the District Judge ordered:

"Let him be placed below Pulkit Narain Jha".

11. In pursuance of the orders so passed, Suresh Chandra Awasthi stood reflected to the regular line and ceased to function as a stenographer. His seniority was reflected in the seniority-list of the clerical staff issued by the District Judgeship from time to time. Shortly after the reversion of respondent no. 5 to the regular line, seniority-list with regard to class III employees of District Judgeship, Kanpur Nagar, was published in which Suresh Chandra Awasthi was placed on sl. no. 11, Umesh Chandra Srivastava was placed at sl. no. 6 and Anant Kumar Shukla was placed at sl. no. 8. The employees at sl. Nos. 1 and 2 have since retired and persons at sl. Nos. 3 and 5 have been reverted to lower pay-scale on account of some disciplinary proceedings against them. In view of this, Umesh Chandra Srivastava was at sl. no. 2 in order of seniority, i.e. immediately below Ram Kumar Srivastava. On the basis of the existing position in the seniority-list, Umesh Chandra Srivastava has been permitted to officiate as Sadar Munsarim by an order of the District Judge, Kanpur Nagar, dated 5.12.2007.

12. Sri Badri Prasad Tewari was then promoted to the post of Central Nazir, which was vacated by petitioner no. 1 on his promotion as Sadar Munsarim.

13. There was a dispute of seniority between Suresh Chandra Awasthi, on the other hand, and the two petitioners, along with Pulkit Narain Jha, Krishna Chandra Gupta, Krishna Gopal Awasthi and Janardan Prasad Dwivedi, on the other; and it was pending before the Administrative Committee. This dispute arose on the representation filed by Suresh Chandra Awasthi claiming his seniority of the original select list. A three-member committee was appointed, which submitted its report restoring the original seniority of Suresh Chandra Awasthi and recommending his placement in the seniority-list immediately below Ravi Kumar Srivastava, and over and above the place of Umesh Chandra Srivastava and Anant Kumar Shukla. As soon as the other officials came to know of this report they made representation before the District Judge. In view of the objections raised by other Class-III employees, a five-member committee, headed by an Addl. District Judge, Kanpur Nagar, was constituted and after hearing all the concerned persons submitted a report to the District Judge on 19.8.2008. Based upon the said report 19.8.1908 the District Judge passed orders directing assignment of seniority to Suresh Chandra Awasthi of original gradation list of 1973. On 29.8.2008 a further order has been passed by the Addl. District Judge, Court No. 1, Kanpur Nagar, notifying the suitability-cum-merit test to be held on 1.9.2008 for the post of Sadar Munsarim. The said order also notified the list of 10 employees illegible for consideration including the petitioners and Suresh Chandra Awasthi.

14. As per Writ Petition Nos. 46612 of 2008 and 47084 of 2008, the seniority list published and served on 28.8.2008 has disturbed the long-standing seniority position existing in the District Judgeship for the period of more than two decades and their exists no justification for any such alteration. Suresh Chandra Awasthi even though senior to the petitioners in the original select list, prepared in the year 1973, his lien in the regular line was lost on account of his voluntary option to join the post of stenographer after appearing in a test conducted for testing his knowledge of stenography. Suresh Chandra Awasthi stood confirmed on the post of stenography and, consequently, his lien was in the line of stenographer and his lien on regular line ceased to exist. While being in the cadre of stenographer, Suresh Chandra Awasthi has enjoyed the benefit of drawing salary in the higher pay-scale. Reversion of Suresh Chandra Awasthi to the regular line was on the specific condition that his seniority position on the regular line would be fixed below Pulkit Narain Jha. Suresh Chandra Awasthi never challenged the order of the District Judge nor the consequential fixation of seniority list. For the first time he staked his claim for original seniority based upon the select list of the year 1973 in an objection filed for the first time in August 2005. Their exists no justification for the District Judge, Kanpur Nagar, to rush through by holding selection for the post of Sadar Munsarim without even supplying the copy of the five-member enquiry report. Selection for the post of Sadar Munsarim is based on the consideration of the service record. It is for the first time that a suitability-cum-merit test has been announced by the respondent for filling up the post of Sadar Munsarim. There is no provision of seniority-cum-suitability under the Rules governing the recruitment.

15. Suresh Chandra Awasthi filed his counter affidavit alleging that initially he was appointed as extra clerk and joined his duties on 10.2.1973. A competitive test for the ministerial cadre under Rule 3 of the Sub-ordinate Civil Court Ministerial Establishment Rules, 1947 (hereinafter, as the Rules) was held in the year 1973, in which Suresh Chandra Awasthi was placed at sl. no. 4, while the name of Umesh Chandra Srivastava and Anant Kumar Shukla found place at sl. Nos. 10 and 20, respectively; and, accordingly, gradation list dated 23.4.1973 was prepared. Since there was shortage of stenographers and services of stenographers was urgently needed, Suresh Chandra Awasthi was deputed to work as fast typist in the court of JSCC vide order dated 15.5.1973 with the condition that his seniority will be maintained according to the merit list prepared vide order dated 23.4.1973. As he was doing the work of stenographer but the pay-scale of stenographer was not being provided, so he was constrained to move an application on 15.11.1973 for providing the scale of stenographer. On that application, the District Judge made two queries from him vide order dated 30.11.1973: (1) whether he is prepared to give up his claim in the regular line; and (2) whether he is prepared to undergo test for recruitment as stenographer. In compliance of that order, he replied vide application dated 12.12.1973 that he was not willing and prepared to give up his claim to the regular line and he was ready to undergo the test for stenographer. It is pertinent to note that he has specifically stated that only the pay-scale of stenographer be awarded to him. He had neither requested nor opted for appointment as stenographer. Accordingly, a formal test of speed in stenography and type was taken for the purpose of finding out his knowledge of typing. The two tests were not held according to Rule 5 of the Rules. Thus, his posting as stenographer was only on a temporary basis to meet the workload. On account of his inability to work as stenographer he moved an application on 14.12.1981 for being reverted back in the regular line on his original substantive line but the application was kept pending, hence another application was given on 30.6.1982. The then Sadar Munsarim submitted a detailed reply dated 30.7.1982 mentioning the place of seniority, facts, circumstances, complications regarding pay, etc. and after considering the same the District Judge passed the order that let the applicant be reverted to the regular line, as proposed. Accordingly, arrangement order dated 31.7.1982 was made. Sadar Munsarim, in stead of complying with the order dated 31.7.1982, submitted another report dated 21.10.1982 and obtained the order dated 23.10.1982 overlooking the previous report and orders. The previous report and orders were not brought to the notice of the then District Judge. Order dated 23.10.1982 was never communicated to him nor the gradation list was ever circulated. When in the month of August, 2005, applications for selection on the post of Sadar Munsarim were invited, he came to know that his seniority has been affected and then he moved an application for fixing his seniority according to the merit list dated 23.4.1973. The matter was referred to the committee of three Senior Judges, which, after obtaining report from the Senior Administrative Officer and perusing the relevant record, reported that his seniority should be fixed according to the merit list dated 23.4.1973, i.e. his name should be placed below the name of Ravi Kumar Srivastava and above the name of Amanullah Khan. When the report of the committee was placed before the District Judge, petitioners raised objections, hence the report of the committee was again sent back to another committee of five Judges for hearing on the objections raised. The committee invited objections from all the concerned and, after hearing, submitted a detailed report which has been approved by the District Judge vide order dated 28.5.2008. The committee unanimously recommended that objections of the petitioners and others be rejected and his name be shifted to the place which he had occupied in the gradation list according to his position in the select-list dated 23.4.1973. Accordingly, a gradation list was prepared in which he was placed at sl. no.2 and the name of Umesh Chandra Srivastava and Anant Kumar Shukla were placed at sl. Nos. 3 and 5 respectively. Being aggrieved, the petitioners have filed the present petitions. They have not availed the alternative remedy available to them.

16. Ram Kumar Srivastava, also filed his counter affidavit, alleging that the post of Sadar Munsarim is a promotional post and it is to be filled up from the seniormost class III employee and since he is the seniormost class III employee, hence, as per the Rules, he is entitled to be promoted to the post of Sadar Munsaraim.

17. Rejoinder affidavit was filed by Umesh Chandra Srivastava in support of his affidavit and denied the contents of counter affidavit.

18. It has been mentioned in Writ Petition No. 47084 of 2008 that the petitioner is working on the post of Record Keeper and is the seniormost class III employee among the employees working in the Civil Courts, Kanpur Nagar. The post of Sadar Munsarim is a promotional one and it has to be filled up from the seniormost class III employees and since the petitioner is the seniormost class III employees in the judgeship, as per the Rules, he is entitled to be promoted on that post.

19. The post of Sadar Munsarim in Kanpur Nagar judgeship fell vacant due to promotion of Sri Omkar Nath Misra on the post of Administrative Officer w.e.f. 1.12.2007. Due to promotion of Sri Omkar Nath Misra, the Chairman, Administrative Committee, called a meeting for selection on the post of Sadar Munsarim on 21.11.2007. By means of an order dated 5.12.2007, passed by the District Judge, it was informed that the selection committee has given charge as officiating Sadar Munsarim to Umesh Chandra Srivastava with immediate effect till further orders. The committee did not find the name of petitioner fit for the post of Sadar Munsarim on the ground of an adverse entry awarded to him in the year 2003. In the enquiry the enquiry officer has submitted a report against the petitioner vide its report dated 26.7.2003 stating therein that the petitioner is guilty of misconduct as he has not followed the Rules. A copy of the report has not been given to the petitioner and without calling for an explanation from the petitioner regarding punishment and without giving an opportunity of hearing, the report was accepted and the adverse entry was made in the character-roll of the petitioner vide order dated 29.7.2003. As per the provisions of law, before imposing any penalty, an opportunity has to be given to the delinquent employee, but no show cause notice, etc. was given to the petitioner and there could be no adverse effect of the entry after expiry of five years. So, the adverse entry would not affect the promotion of the petitioner. In view of the above Government Order, the adverse entry cannot be considered after five years of its award and has no bearing on the promotion of the petitioner. So long as the appeal preferred by the delinquent employee is pending before the Administrative Judge, it cannot be read against the delinquent employee. As there was no permanent Sadar Munsarim, hence on 1.3.2008 it was directed that selection of Sadar Munsarim has to be made without any delay. The Addl. District Judge/Officer-in-charge, Administration, passed an order dated 29.8.2008 stating that suitability-cum-merit test for the post of Sadar Munsarim will be held on 1.9.2008 and all applicants were directed to appear in the said test and a list of illegible officials was annexed. This list was not according to the seniority as per the Rules, nor seniority is the criterion for appointment on the post of Sadar Munsarim and there is no other mode for promoting a person to the post of Sadar Munsarim. No Rules were framed and no criteria were fixed for the post which was going to be held on 1.9.2008. The petitioner made a representation before the District Judge to stay the process of selection and the process of selection was stayed. In the seniority list, name of Suresh Chandra Awasthi was shown at sl. no. 8 while in the present seniority-list, his name has been placed at sl. no. 2. Against the present seniority-list, objections were filed by other employees, who were being affected. However, the petitioner is not affected by the present seniority-list. There is no justification to hold the examinations within 3 days from the date of the order. The post of Sadar Munsarim is vacant, hence the petitioner is entitled to be promoted and in this regard he made made several representation before the District Judge but no action has been taken. The petitioner's name was considered by the committee for promotion but due to adverse entry, his name was not found suitable ignoring the G.O., according to which an adverse entry ceased to have any effect after five years. The petitioner is at the verge of retirement as he would retire in September, 2009, hence it is necessary that his case for promotion be considered.

20. Respondent no. 3, District Judge, Kanpur Nagar, in Writ Petition No. 10705 nof 2010, filed a counter affidavit alleging that Suresh Chandra Awasthi had moved an application dated 15.12.1973 for award of the scale of stenographer on the pretext that he was doing the work of stenographer and on the basis of the said application of Suresh Chandra Awasthi, the then District Judge made certain queries vide order dated 30.11.1973 to which he replied by his letter dated 12.12.1973. Suresh Chandra Awasthi never lost his lien in the ministerial cadre. As stated by the petitioner, Suresh Chandra Awasthi was appointed as a stenographer on 30.1.1974 and he withdrew his salary on the post of stenographer till 23.1.1982.

21. The gradation list available in the Kanpur Judgeship dated 28.8.2008, which was duly approved by the then District Judge, is a just and correct list. Annexure - 10 to the writ petition filed by the petitioner is a working list of employees in the pay-scale of Rs. 4500-7000, whose name was going to be considered for selection to the post of Sadar Munsarim, but the selection on the basis of Sadar Munsarim can be made under Rule 20 of the Rules of 1947 from the eligible candidates. On the representation of Suresh Chandra Awasthi, finding that there was a dispute of seniority, the matter was referred by the District Judge to the Administrative Committee consisting of three Additional District Judges and, thereafter, the matter was sent to the committee of five Additional District Judges, also constituted by the then District Judge, to decide the seniority of respondent no. 4 and other employees who made the representation and the said committee found Suresh Chandra Awasthi as the seniormost candidate amongst all the eligible employees. The allegations contrary to this, as stated by the petitioner, are incorrect and baseless. The report of the five-judge committee was approved by the District Judge vide order dated 28.8.2008. It is just and correct order under the Rules, by which Suresh Chandra Awasthi has been promoted on the post of Senior Administrative Officer. On the basis of the report dated 19.2.2010 of three-judge committee regarding appointment on the post of Sadar Munsarim, the then District Judge has passed orders dated 20.2.2010. Suresh Chandra Awasthi has been deemed posted and promoted to the post of Sadar Munsarim from the date the petitioner, Umesh Chandra Srivastava, started working as officiating Sadar Munsarim. The permanent selection of Sadar Munsarim and Senior Administrative Officer in the Kanpur Judgeship cannot be made due to the writ petition filed by the petitioner in December, 2008. The then District Judge, Kanpur Nagar, had passed orders on 20.2.2010, on the basis of the report of the three-judge committee as per the provisions of the service rules. The committee has recommended the promotion, which was accepted by the then District Judge and he passed the order in favour of Suresh Chandra Awasthi. This order is correct in the eyes of law. The then District Judge, Kanpur Nagar, approved the seniority list on the basis of the seniority-list prepared by five-judge committee and, thereafter, under order of the District Judge dated 20.2.2010. Sri Umesh Chandra Awasthi was ordered to be promoted as per the provisions of rule 20 of the Rules of 1947. The petitioners did not file a representation before the District Judge/appointing authority against the approved gradation list. Thus, the petitioner cannot avail the benefit under Article 226 of the Constitution of India in the present writ petition. The seniority list has become final after deciding the objections which cannot now be challenged.

22. Suresh Chandra Awasthi has filed his counter affidavit reiterating the assertions made in the previous W.P. No. 46612 of 2008.

23. During the pendency of these writ petitions, Ram Kumar Srivastava, who has filed the writ petition, has also moved an impleadment application, He has been heard under Chapter XXII Rule 5-A of the Allahabad High Court Rules.

24. A rejoinder affidavit was filed by Umesh Chandra Srivastava reiterating the assertions made in the earlier affidavit and denying the contentions in the counter affidavit.

25. We have heard Sri H.N. Singh and Sri C.M. Rai, learned counsel for the petitioners, Sri Pradeep Kumar, learned counsel for respondent no. 2-High Court of Judicature at Allahabad through its Registrar General and respondent no. 3-District Judge, Kanpur Nagar and Sri Udayan Nandan, learned counsel for respondent no. 4-Suresh Chandra Awasthi.

26. In Writ Petition No. 46612 of 2008 fixation of seniority dated 28.08.2008 (annexure 22 to the writ petition) has been challenged.

27. It has been argued that Suresh Chandra Awasthi, who had earlier opted in the Stenographer cadre and was absorbed and confirmed, could not have been reverted by the District Judge as per the provisions of Section 3 of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as 'the Rules 1947') previous approval of the High Court is required for doing the same. The said fact has been admitted by the learned counsel, Sri Pradeep Kumar that no previous approval of the High Court was received for reverting Suresh Chandra Awasthi from Stenographer cadre to Ministerial cadre.

28. It was argued that due to the above laches, reversion is illegal and on that basis the seniority list, which has been prepared by the then District Judge, Kanpur Nagar, is also illegal and the same is liable to be quashed.

29. Before entering into the discussion, it will be prudent to observe that as per Section 3 of the Rules 1947, Ministerial Establishment of a judgeship and the stenographers are two separate cadres.

30. Admittedly in the year 1973, selection proceedings were conducted for recruiting the ministerial employees in District Judgeship, Kanpur Nagar and in that selection Umesh Chandra Srivastava, Anant Kumar Shukla and Suresh Chand Awasthi were also the applicants. A select list was published after the finalization of the selection proceedings and 30 candidates stood selected for appointment. It has also been admitted that in that select list Suresh Chandra Awasthi was at serial no. 4 and Umesh Chandra Srivastava and Anant Kumar Shukla were assigned at serial no. 10 and 20 respectively. It has also been admitted that in pursuance of the aforesaid select list, Umesh Chandra Srivastava, Anant Kumar Shukla and Suresh Chandra Awasthi all were granted initial appointment on the post of Copyist and they joined their services.

31. It has now been averred that immediately after selection and appointment on the post of copyist, Suresh Chandra Awasthi filed an application before the District Judge, Kanpur Nagar that he was proficient in shorthand and stenography and, therefore, he be sanctioned the pay scale of stenographer instead of pay scale of copyist (annexure 1 of the writ petition no. 46612 of 2008) in which it has been mentioned that "I am working as a stenographer in this Court since August, 1972. I am taking dictation in shorthand and performing my duties as a stenographer very well but I am getting the scale of copyist instead of stenographer. It is, therefore, most respectfully prayed that your honour may very kindly be pleased to consider my matter sympathetically and order to award me stenographer's scale."

32. This application does not support the contention of Umesh Chandra Srivastava and Anant Kumar Shukla that Suresh Chandra Awasthi moved application for being appointed as stenographer. It will be appropriate to mention that vide annexure CA-1 dated 15.05.1973 (W.P. No. 10705 of 2010) Suresh Chandra Awasthi an approved candidate but officiating as copyist was deputed to work as fast typist in court of JSCC, Kanpur and it was made clear that seniority of Sri Suresh Chandra Awasthi at serial no. 3 will be maintained according to merit list prepared vide District Judge's order dated 23.04.1973. Suresh Chandra Awasthi had simply stated that he was working as a stenographer and taking dictation in shorthand and performing his duties as stenographer but he was getting the scale of copyist. Both the matters are two different things and if the District Judge is taking work of stenographer from him, it cannot be said that he was appointed as a stenographer.

33. Rule 5 of the Rules, 1947 lay different academic qualifications for the post of Ministerial Staffs and Stenographers. For convenience, Rule 5 of the Rules, 1947 reproduced below:

"5. Academic qualifications.- No person who is not already on the staff attached to a subordinate Civil Court shall be appointed to a post in the ministerial establishment unless-

(a) he has passed at least the Intermediate examination conducted by the Board of High School and Intermediate Education, Uttar Pradesh, or any other examination which has been or may be declared by the Governor to be equivalent thereto;

(b) he possesses a thorough knowledge both of Urdu and Hindi;

(c) he possesses in the case of a candidate for the post of stenographer a diploma or certificate from a University or a recognized short hand and typewriting institution, showing that he possesses a speed of at least 100 words per minute in shorthand and 35 words per minute in typewriting."

34. This clearly goes to show that for the post of stenographer a candidate must possess a diploma or certificate from a University or a recognized Shorthand and Typewriting Institution showing that he possesses a speed of at least 100 words per minute in shorthand and 35 words per minute in typewriting.

35. It is nowhere the case of the petitioners that Suresh Chandra Awasthi possesses these qualifications. It is admitted that he had appeared in 1973 selection proceedings for recruitment of ministerial employees in District Judgeship, Kanpur and was selected and placed much above Umesh Chandra Srivastava and Anant Kumar Shukla.

36. The application of Suresh Chandra Awasthi dated 15.11.1973 (annexure 1 to the Writ Petition No. 46612 of 2008) reveals that the then District Judge inquired from him that whether he is prepared to give up his claim in the regular line and whether he is prepared to undergo test for recruitment as a stenographer.

37. In his reply, Suresh Chandra Awasthi had written a letter dated 12.12.1973 to the then District Judge (annexure 2 to the Writ Petition No. 46612 of 2008) that he is not willing to give up his lien/claim in regular line. In regard to the second query, he had replied that he had already undergone test for recruitment as a stenographer which was taken by Sri RBL Khandelwal IInd Additional District Judge, Kanpur Nagar when he was initially appointed as outsider copyist. Thereafter, Sri S.P. Srivastava, Additional District Judge, Kanpur was deputed to take test of Suresh Chandra Awasthi, a copy whereof is annexure 4 to the writ petition no. 46612 of 2008. After taking test, learned Additional District Judge, Kanpur had reported that the speed of typing of Suresh Chandra Awasthi comes to 55 words per minute and with regard to shorthand test, he had been given dictation @ 80 words per minute in which he had committed 12 mistakes. This clearly goes to show that Suresh Chandra Awasthi did not possess the requisite qualifications for the post of stenographer as has been mentioned in Rule 5 (c) of Rules, 1947. In annexure 4 of the writ petition no. 46612 of 2008, it has also been mentioned that there is a shortage of stenographers in this judgeship so he may be deemed as a proper candidate for being appointed as such. This clearly goes to show that due to shortage of stenographers the then District Judge passed orders that "Seen. He may be enlisted as an approved stenographer and posted as such as and when any vacancy arises".

38. After this, a temporary arrangement was made on 01.03.1974 to post Suresh Chandra Awasthi to be acting stenographer to the court of Additional JSCC, Kanpur. In the said order, the District Judge had mentioned that services of all the officers are purely temporary and are liable to be terminated at any time without prior notice. The said order nowhere indicates that as to whether any vacancy arose or was available for being appointed as a regular stenographer or not.

39. A specific query was made from Sri Pradeep Kumar, learned counsel as to whether any vacancy had arisen between 1974 till the reversion application. A statement showing sanctioned post working strength and vacancies of Stenographer of Kanpur Nagar w.e.f. 1974 to 1982 was submitted by him, which is reproduced below:

Statement showing the Sanctioned post, Working Strength and Vacancies of Stenographers of Kanpur Nagar Judgeship w.e.f. 1975 to 1982.

Sl. No.

Year

Sanctioned Strength

Working Strength

Vacancies

NIL

NIL

NIL

NIL

NIL

NIL

NIL

NIL

40. This chart clearly shows that only two vacancies were there in 1980 and then again in the years 1981 and 1982 no vacancy was existing. It is nobody's case that Suresh Chandra Awasthi was absorbed in stenographer's cadre and it has come above in discussion that he did not possess requisite qualification for being appointed as stenographer. If for argument sake it be held that he was absorbed in the year 1980, then too his absorption was illegal and against the Rule 5 of the Rules, 1947. This clearly goes to show that between 1974 to 1979 no vacancy was existing.

41. Thus, it can be safely said that Suresh Chandra Awasthi was never legally appointed/ absorbed as a regular stenographer.

42. In view of above, the argument that no previous approval of the High Court was taken loses its sheen and force as when a person has not been legally recruited from regular line as a stenographer and the person has not given up his lien then no situation arises for taking previous approval of the High Court for the reversion of Suresh Chandra Awasthi.

43. Suresh Chandra Awasthi moved an application on 14.12.1981 to the District Judge, Kanpur stating therein that due to continuous typing he feel a little pain in his chest and he had been advised to avoid too much strain in typing so kindly absorbed him in regular line according to his seniority. On this application, Munsarim gave report, which is annexure 7 to the Writ Petition No. 46612 of 2008, and the Munsarim had offered that in the year 1980 his lien from regular line to stenographer was changed due to his confirmation on the post of stenographer because one official cannot hold two permanent lien and at present there is no permanent vacancy in the regular line so if approved Suresh Chand Awasthi may be reverted to regular line and may be posted as such temporarily. The then District Judge passed orders on 31.07.1982 which is as follows:

" Seen. Let the applicant be reverted to regular line as proposed"

44. Later on, on the report of Bill Clerk (annexure 8 to the Writ Petition No. 46612 of 2008), it was ordered by the then District Judge that "Suresh Chandra Awasthi will continue to work as Stenographer in the Court of Chief Metropolitan Magistrate as proposed. Put up when permanent vacancy arises. The post of Munsarim, Ist Additional Civil Judge shall remain vacant w.e.f. 01.08.1982". Again Munsarim gave a report (annexure 9 to the Writ Petition No. 46612 of 2008) and suggested that the question remains to be considered whether the seniority of Suresh Chandra Awasthi be fixed below the name of Ravi Kumar Srivastava or in the last i.e. below the name of Pulkit Narain Jha in the scale of 430-685 or below the name of other 59 officials who are confirmed in the scale of 354-550. The then District Judge, vide order dated 23.10.1982, directed that his name be placed below Pulkit Narain Jha.

45. Suresh Chandra Awasthi moved an application on 11.08.2005 (annexure-CA-4 to the counter affidavit of the writ petition no. 10705 of 2010) in which he had prayed that he had not been given seniority according to the merit list dated 23.04.1973 and prayed that his seniority may kindly be fixed according to the merit list dated 23.04.1973. Again an application was moved on 31.03.2006 for the same prayer. Thereafter, the then District Judge constituted a committee of three judges who submitted its report dated 23.05.2006 (annexure-CA-6 to the counter affidavit of Writ Petition No. 10705 of 2010) in which the committee after considering the fact expressed its view that seniority of Suresh Chandts Awasthi should be fixed according to the merit list dated 23.04.1973 and his name should be placed before the name of Ravi Kumar Srivastava and above the name of Aman-Ullah Khan in the gradation list dated 23.04.1973. Against this report, various employees made representations and again a committee of five judges was constituted by the then District Judge. The said committee submitted its report on 28.08.2008 again recommending that Suresh Chandra Awasthi should be given the place in the seniority which he occupied in the select list dated 23.04.1973. This seniority list has been challenged by Umesh Chand Srivastava and Anant Kumar Shukla by means of Writ Petition No. 46612 of 2008.

46. From the above discussion and considering Section 3 and Section 5(c) of the Rules, 1947, it has been clearly established that Suresh Chandra Awasthi cannot be said to have been substantively recruited in the stenographer cadre and thus he cannot be said to have been specifically shifted from the ministerial cadre to the stenographer cadre. Then after reversion to ministerial cadre, Suresh Chandra Awasthi should have occupied the place in the gradation list in the ministerial cadre which he would have been occupying, had he not been shifted to stenographer's work as he has also not forgone his lien from the ministerial cadre.

47. Had he given his consent to give up his lien even then as per fundamental Rule 14-A(a) of Financial Hand Book Vol. 2 Part II to IV, his lien could not have been terminated until he was given a lien on any other post. Suresh Chandra Awasthi was not holding a lien in the stenographer cadre. Circular letter no. 55/ve-94/Admn.(D) dated September 25, 1973 issued by this Court makes it clear that the seniority list prepared according to Rule 14 of the Ministerial Establishment Rules, 1947 shall be the seniority list for all intents and purposes including seniority and promotion in case of Class-III employees of a judgeship. Rule 5 of the U.P. Government Servants Seniority Rules, 1991 also mentions that "where appointments are to be made only by direct recruitment, the seniority inter se of the persons appointed on the result of any one selection shall be the same as it shown in the merit list prepared by the commission or the committee, as the case may be."

48. A perusal of the report of the Committee, which was approved by the then District Judge on 28.08.2008, reveals that the Committee has considered all the aspects and Rules while fixing the seniority and preparing the gradation list.

49. The ground on which this seniority list has been challenged are devoid of merit and are not sustainable.

50. In Writ Petition No. 47084 of 2008 filed by Ram Kumar Srivastava, it has been prayed that the direction dated 29.08.2008 for holding a test for appointment on the post of Sadar Munsarim be quashed and issue a writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioner on the post of Sadar Munsarim and to pay him salary.

51. In Writ Petition No. 46612 of 2008 filed by Umesh Chandra Srivastava and another who has been prayed that the order dated 29.08.2008 regarding holding the test be quashed and respondents be restrained from holding any suitability-cum-merit test for the post of Sadar Munsarim in pursuance of the order of the learned Additional District Judge, Court No. 1, Kanpur Nagar dated 29.08.2008.

52. In paragraph 35 of the Writ Petition No. 46612 of 2008, it has been mentioned that a suitability-cum-merit test was scheduled to be held on 01.09.2008, vide order dated 29.08.2008. In paragraph 48 of the counter affidavit filed by Suresh Chandra Awasthi, It has been specifically denied that though the suitability-cum-merit test for appointment of Sadar Munsarim was proposed to be held in which the petitioners and other senior employees were invited to participate but the above test was postponed and no further date had been fixed for the said purpose. In the rejoinder affidavit, the petitioners have not denied this fact. They have simply stated that the contents of paragraph 48 of the counter affidavit are incorrect and are denied. It is not the case of the petitioners that suitability-cum-merit test was held any time after 01.09.2008. In view of this, when the suitability-cum-merit test was not held at all then the prayers made in Writ Petition Nos. 46612 of 2008 and 47084 of 2008 have become infructuous.

53. In Writ Petition No. 46612 of 2008 a further prayer to issue a writ, order or direction of suitable nature commanding the respondents to fill up the post of Sadar Munsarim on the criterion of seniority subject to rejection of the unfit on the basis of seniority list as existing till prior to August, 2008 has been made.

54. Ram Kumar Srivastava in his Writ Petition No. 47084 of 2008 filed an order of the then District Judge, Kanpur Nagar dated 05.12.2007 existence of which have not been denied by any of the parties. The said order is quoted hereunder:

 
"IN THE OFFICE OF THE DISTRICT JUDGE, KANPUR NAGAR
 
ORDER NO. 246                       DATED: DECEMBER 5, 2007.
 

 
ORDER
 

Since the matter of seniority between Sri Suresh Chand Awasthi on one hand and Sri Umesh chand Srivastava, Sri Anant Kumar Shukla, Sri Pulkit Narain Jha, Sri Krishna Chand Gupta, Sri Krishna Gopal Awasthi and Sri Janardan Prasad Dwivedi on the other is pending before the Administrative Committee, therefore, the Selection Committee has recommended that for the time being, senior most official in the seniority list at the moment against whom there is no adverse entry, namely, Sri Umesh Chand Srivastava may be allowed to officiate as Sadar Munsarim till the matter of seniority inter se, as noted above is decided finally.

The Selection Committee did not find Sri Ram Kumar Srivastava fit for the post of Sadar Munsarim on the ground of adverse entry regarding misconduct awarded in the year 2003.

Accordingly, Sri Umesh Chand Srivastava is posted as officiating Sadar Munsarim with immediate effect till further order so that the work of the seat of Sadar Munsarim may not suffer.

Sri Moti Chand Jain-Sr. Administrative Officer has since been retired on 30.11.2007. Therefore, Sadar Munsarim Sri Onkar Nath Misra is promoted and posted in his place as Senior Administrative Officer in the pay-scale of Rs. 6500-10, 500 with immediate effect.

(SUBHASH CHANDRA)

District Judge,

Kanpur Nagar"

55. According to this, Umesh Chand Srivastava was posted as officiating Sadar Munsarim till further order because the matter of seniority between Suresh Chandra Awasthi, Umesh Chandra Srivastava, Anant Kumar Shukla, Pulkit Narain Jha, Krishna Chand Gupta, Krishna Gopal Awasthi and Janardan Prasad Dwivedi was pending before the Administrative Committee.

56. Rule 20 (3) of Rules, 1947 clearly provides that posts other than those mentioned in clause (2) above, for persons in the pre 1931 scale on post 1931 scale respectively shall be treated as selection posts, promotion to which shall be based on merit with the due regard to seniority. A note has also been added that in passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared with his seniors.

57. This clearly goes to show that seniority alone is not a criteria for promotion to the post of Sadar Munsarim. The merit has also to be considered and if a junior ministerial employee is promoted then it will have to be mentioned that the junior official promoted is of outstanding merit as compared with his seniors.

58. It has been mentioned above that on the representation of Suresh Chand Awasthi, a three judge committee was constituted to give its report. It has also been mentioned above that the three judge committee submitted its report on 23.05.2006 which was approved by the District Judge after circulation of the gradation list in which several affected persons filed objections against that gradation list and a five judge committee was constituted to resolve the same. The said Committee submitted its report on 28.08.2008 confirming the place of Suresh Chand Awasthi in previous gradation list prepared by three Judge Committee.

59. In the gradation list dated 28.08.2008, Ram Kumar Srivastava, Suresh Chandra Awasthi, Umesh Chandra Srivastava and Anant Kumar Shukla were placed at serial nos. 1, 2, 3 and 5 respectively. This was in conformity with the initial gradation list of 1973.

60. The order dated December 05, 2007 was based on a report of Selection Committee, which did not found Ram Kumar Srivastava fit for the post of Sadar Munsarim on the ground of adverse entry regarding misconduct awarded in the year 2003.

61. Counsel for Ram Kumar Srivastava argued on the basis of Government Order dated 30th June, 1993 that no adverse inference can be drawn against the employee if five years have passed from the date of adverse entry and thus in the month of July, 2008, Ram Kumar Srivastava became eligible for promotion on the post of Sadar Munsarim.

62. It is worth mentioning that Ram Kumar Srivastava was found unfit for promotion on the post of Sadar Munsarim in the year 2007, when five year have not been passed. Thus order dated 05.12.2007 does not suffer from any illegality or irregularity and is not in violation of Government Order dated 30th June, 1993 (annexure 5 of Writ Petition No. 47084 of 2008).

63. It was also argued that the above adverse entry was not communicated to him so as per Government Order dated 04.05.1995 it will not be considered for promotion.

64. Ram Kumar Srivastava has filed a representation for quashing adverse entry before the District Judge which was rejected by the District Judge. Against which departmental appeal before the Administrative Judge, Kanpur Nagar was preferred on 19.02.2008, which was forwarded by the District Judge, Kanpur nagar on 27.02.2008. Though it has been mentioned in the concerned writ petition that the same is still pending but during course of argument it was asserted that it has been rejected.

65. As per Rule 20(3) of the Rules, 1947, post of Sadar Munsarim is promotional post to which merit with due regard to seniority is to be considered. The incident which resulted in enquiry and later on entry of misconduct is mentioned in the enquiry report (annexure 3 of Writ Petition No. 47084 of 2008). As per that report, Ram Kumar Srivastava has alleged that he had returned a repayment applicant to the applicant to which the applicant has denied in preliminary enquiry. Thus a repayment application went missing of which Ram Kumar Srivastava was found guilty. Thus too the comparison of merit between Ram Kumar Srivastava and Umesh Chandra Srivastava as on date 05.12.2007, Umesh Chandra Srivastava was rightly given preference over Ram Kumar Srivastava as there was no adverse entry against Umesh Chandra Srivastava.

66. Later on when, finally after the seniority was fixed and promotion for regular appointment on the post of Sadar Munsarim came up in the year 2010, Ram Kumar Srivastava has since retired and Umesh Chandra Srivastava was placed below Suresh Chandra Awasthi in the gradation list of 2008.

67. The report of Selection Committee dated 19.02.2010 (annexure 15 of Writ Petition No. 10705 of 2010) was approved by the District Judge on 20.02.2010. The Selection Committee has discussed in detail the reasons and merit and seniority of various applicants and finally recorded that Suresh Chandra Awasthi be promoted to the post of Sadar Munsarim. It was also recommended that post of Senior Administrative Officer is lying vacant and according to Government Order No. 1924/Saat-Aa. Nya-13/89 dated 19th August, 1989 and the Government Order No. 1924(2) saat-Aa-Nya-13/09 dated 16th September, 1989, appointment to the post of Senior Administrative Officer is to be made by promotion of Sadar Munsarim. Suresh Chandra Awasthi has been found fit to be promoted for the post of Sadar Munsarim. It is recommended that Suresh Chandra Awasthi be promoted to the post of Senior Administrative Officer treating him to have already been promoted as Sadar Munsarim.

68. In Writ Petition No. 10705 of 2010, Umesh Chandra Srivastava has prayed to quash the report dated 19.02.2010 and also the order of the District Judge dated 20.02.2010. Since the report dated 19.02.2010 is based on merit giving due weightage to seniority and Umesh Chandra Srivastava was not found to be of outstanding merit so as to supersede Suresh Chandra Awasthi, then there is no illegality or irregularity or violation of Rule 20(3) of the Rules, 1947.

69. In view of the above discussion all the writ petitions are liable to be dismissed.

70. The writ petitions are hereby dismissed.

Order Date :- 6th July, 2012

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