Umakant Singh And Ors. vs State Of U.P.Thru Prin.Secy. Home ...
2023 Latest Caselaw 2739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 575 of 2020
 
Petitioner :- Umakant Singh And Ors.
 
Respondent :- State Of U.P.Thru Prin.Secy. Home Lko And Ors.
 
Counsel for Petitioner :- Birendra Kumar Yadav,Amit Kumar
 
Counsel for Respondent :- C.S.C.,Mohd Mansoor,Mohd. Danish
 

 
Hon'ble Vivek Chaudhary,J.

Heard learned counsel for the petitioners, learned Standing Counsel for the State and Sri Mohd. Mansoor for the private respondent no.6.

The petitioners have approached this Court challenging the order dated 12.12.2019 whereby seniority list of the department was prepared following the U.P. Government Servant Seniority Rules, 1991 (for short 'the Rules of 1991') by the Director General, U.P. Fire Service, Lucknow.

The facts of the case are that the petitioners were appointed in the year 1997, private respondents were appointed in the year 1998 and respondent no.9 was appointed in the year 1999. The tentative seniority list was prepared on 24.4.2004 and the final seniority list was prepared on 4.9.2004. The same was prepared under Rule 19 of the United Province Fire Service (Recruitment and Condition of Service) Rules, 1945 (for short 'the Rules of 1945'). The final seniority list was challenged by way of representation before the Director General, U.P. Fire Service, Lucknow, which was rejected on 2.12.2005. A claim petition was filed before the State Public Service Tribunal, which was rejected on 29.1.2007 and thereafter, Civil Misc. Writ Petition No.10309 of 2007 was filed before this Court. In the writ petition, a specific issue was raised as to whether the Rules of 1945 or the Rules, 1991 would be applicable for the purpose of seniority. The relevant portion of order dated 8.9.2008 passed in the said writ petition reads:

"Learned counsel for the petitioner contends that the petitioners were selected by the direct recruitment in the year 1993/98. The petitioners were placed in the waiting list. Shir Anil Kumar Singh, placed at serial No. 16 joined the training on 11.12.1997, while the other candidates had joined on 8.12.1997 but his name was not placed as per the joining date. He was promoted as Fire Service Officer in August 2005. Similarly the name of Shri Narendra Singh Kunwar, who joined the training on 26.12.1997 after nine days of Shri Rajendra Singh Khati, who joined on 17.12.1997 but in the seniority list he has been shown at serial No. 94 and the name of Shri Rejendra Singh Khati shown at serial No. 95. It is further submitted that the Rules of 1991 are applicable to all the government service. The seniority list was prepared in a haste and that the Rules of 1991 being the general rules regulating the seniority of all government service would apply to the present case. He has relied upon Mohan Karan's case (supra) in which it was held that Rules of 1991 apply to all government service in respect of whose recruitment and conditions of service rules are made or to be made by the Government under proviso to Article 309 of the Constitution of India. By Rule 3, the Rules of 1991 have been given overriding effect over any other service rules.

The selections for the post of Fire Station Second Officers started in the year 1993, and was completed in the years 1997 and 1998. All the candidates joined in the month of December from 8.12.1997 to 23.12.1997 except the petitioners, who were called to join from out of the waiting list on 12.2.1998 at the State Fire Training College, Unnao. The seniority was fixed in accordance with the Rules of 1945, which provides in Rule 19 that the seniority of persons appointed to the service in a section shall be determined by the date of the order of his appointment to a substantive vacancy in the section. The rules are general in nature and are saved by Article 372 read with Article 395 of the Constitution of India. The Rules of 1945 have been made applicable for fixing seniority in police services. The representations made by the petitioners were dismissed by the Director General (Police) Fire Service U.P. Lucknow on the ground that seniority has been fixed accordance with the Rule 19 of the Rules of 1995. The judgments in Chandra Prakash Tiwari (supra) and D.R. Yadave (supra) held that unless the special rules are specifically repealed by the general rules the special rules will hold the field. The Rules of 1945 (special rules in this case) are applicable to United Provinces Fire Services. These are comprehensive rules providing for the cadre in part-1 recruitment in the part-III; probation and promoting in part IV; pay and allowances in part-V and control in part-VI. It is not denied that these rules are applicable for all other service conditions of the fire service officers.

We find that the question of law is covered by the judgments in Chandra Kant Tiwari (supra) and D.R. Yadav (supra) and that in the present case Rules of 1991 have not specifically repealed the Rule 19 of the Rules of 1945 and will hold the field. The petitioner's seniority as such has been correctly determined by the date of the order of their appointments to the substantive vacancy in the section.

The writ petition is dismissed."

The High Court thus held that it is Rule 19 of the Rules of 1945 which governs the field and not the Rules of 1991. Against the same, SLP Civil No.3313 of 2010 was filed, which was dismissed by order dated 24.8.2017.

It appears that meanwhile another seniority list dated 25.4.2008 was finalized and the same was also under the Rules of 1945. Thus, the matter in fact, stood concluded. Thereafter, some persons approached the Tribunal by way of Claim Petition No.1533 of 2018, raising a ground that the Rules of 1991 would apply and not the Rules of 1945 and the Tribunal passed the following order on 4.9.2018:

"Petitioner has filed this claim petition for fllowing relief:

i) To issue order or direction to the opposite party No.2 to revise the seniorty list of Fire Station Officer and Fire Station Second Officer in the light of the U.P.Government Servants Seniority Rules 1991 after taking consideration of the merit list of Fire Station Second Officer examination-1993 contained as Annexure No. 3 to compilation No II to the claim petition thereafter make further promotion to the post of Chief Fire Officer in the interest of justice.

ii) To pass any other order or direction as the Hon'ble Court which deem just fit and proper in the lights of the facts and circumtances of the case.

iii) To award costs of the petition to the petitioners.

Petition has challenged his placement in the seniorty list dated 27-11-2015 issued by opposite party no. 1 and 2 on the ground that person juniores to them were placed above them. Petitioner have filed representation dated 03-07-2018 before Director General of Police fire Service U.P. which is still pending for dicision.

Since entire facts are not before us we dispose of this petition after hearing learned counsel for petitioner and P.O direting Director Genehal of Police Fire Service Headquarter U.P. Lucknow to decide, the representation by speaking and reasoned order within three months form the date of receipt of certified copy of this order alogwith fresh copy of representation, consign."

Thus, there is nothing said by the Tribunal as to which of the Rules would apply and in fact the order of the High Court was never placed before the Tribunal. It merely directed the Director General, U.P. Fire Service, Lucknow to decide the representation.

It goes without saying that the representation was required to be decided in accordance with law. Without bothering about the earlier final seniority list of the year 2004 and 2008, which was not under challenge any further and the judgment of this Court dated 8.9.2008, the Director General,U.P. Fire Service, Lucknow proceeded to apply Rules of 1991 and issued the impugned seniority list dated 12.12.2019. In the entire order, the Director General,U.P. Fire Service, Lucknow has nowhere considered, not even bothered to refer to the judgment dated 8.9.2008 of this Court. He has thoroughly ignored the same. He has also failed to consider the fact that earlier final seniority list of the year 2004 and 2008 are already final and no change in the same could be done. Despite the same, he has issued a fresh seniority list by applying the Rules of 1991, in violation of the judgment of this Court and has undone the earlier final seniority list. This is not merely beyond the power and jurisdiction of the Director General, U.P. Fire Service, Lucknow but is also contemptuous.

Hence, the impugned seniority list dated 12.12.2019 is set aside.

The writ petition is allowed.

The respondent no.3-Director General (U.P. Fire Service), Lucknow is cautioned to be careful in future.

.

[Vivek Chaudhary,J.]

Order Date :- 27.1.2023

Sachin