Allahabad High Court
Binay Kumar Singh And Another vs State Of U.P. And 3 Others on 25 April, 2025
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on:- 4.3.2025
Delivered on:- 25.4.2025
Neutral Citation No. - 2025:AHC:65148
Case :- WRIT - A No. - 21727 of 2023
Petitioner :- Binay Kumar Singh And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Saroj Kumar Yadav,Sr. Advocate
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
1. Heard Sri H.N. Singh, learned Senior Advocate assisted by Sri Saroj Kumar Yadav, learned counsel for the petitioners and learned Additional Chief Standing Counsel for the State-respondents.
2. Present petition has been filed with the following prayers:-
"(i) Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned order dated 21.11.2023 passed by the Principal Secretary, Transport Department, U.P. Government, Lucknow.
(ii) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioners to the posts of Regional Transport Officer treating their names placed at serial Nos. 196 and 197 of the seniority list of Assistant Regional Transport Officer with effect from the date the other Assistant Regional Transport Officer below in the seniority after 196 & 197 have been promoted.
(iii) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to place the petitioners at serial Nos. 196 & 197 of the seniority list of Assistant Regional Transport Officer and to provide all consequential benefit of the same."
3. Brief facts of the case are that U.P. Public Service Commission has issued advertisement for the appointment on the post of Regional Inspector (Technical)/ Technical Inspector. Pursuant to the advertisement, petitioners have been recommended for selection on the said post alongwith 12 other candidates including 5 Scheduled Caste category candidates, namely, Satish Kumar, Anand Nirmal, Ashok Kumar, Munshi Lal and Rajesh Kardam. After submission of joining on the post of Regional Inspector (Technical)/ Technical Inspector, petitioner no.1 was placed in the seniority list at serial no. 61 and petitioner no. 2 was at serial no. 62 whereas Scheduled Caste category candidates namely, Satish Kumar, Anand Nirmal, Ashok Kumar, Munshi Lal and Rajesh Kardam were placed at serial nos. 65, 67, 71, 72, 73.
4. The service condition of petitioners are governed by the provision of Uttar Pradesh Transport (Subordinate) Technical Service Rules, 1980 (hereinafter referred to as Rules, 1980). The seniority of petitioners are governed by the provision of Uttar Pradesh Government Servants Seniority Rules, 1991 (hereinafter referred to as Rules, 1991). Reserved category candidates are also entitled for benefit of promotion in terms of Uttar Pradesh Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as Act 1994).
5. The State of Uttar Pradesh in terms of Act, 1994, amended the Rules, 1991 by Uttar Pradesh Government Servants Seniority (First Amendment) Rules, 2002 (inserting Rule 8A), which provides consequential seniority to Scheduled Caste or Scheduled Tribes category candidates after promotion. Providing the benefit of reservation in promotion, junior to petitioners, namely, Satish Kumar, Anand Nirmal, Ashok Kumar, Munshi Lal and Rajesh Kardam were given promotion on the post of ARTO alongwith seniority vide order dated 31.12.2008 for selection year 2007-08 & 2008-09 and they have been placed in the seniority list at Serial Nos. 196 to 200. Later on, petitioner nos. 1 & 2 were also promoted on the post of Assistant Regional Transport Officer (in short ARTO) vide orders dated 21.11.2012 & 8.4.2013 and they have been placed in the seniority list at Serial Nos. 227 & 229.
6. Section 3(7) of Act, 1994 and Rule 8A of Rules, 1991 were challenged before this High Court and ultimately matter went up before Apex Court in the matter of Uttar Pradesh Power Corporation Limited vs. Rajesh Kumar and others reported as (2012) 7 SCC 1 in which Apex Court vide judgment and order dated 27.4.2012 declared the Section 3(7) of Act, 1994 and Rule 8A of Rules, 1991 ultra vires.
7. For compliance of order of Apex Court, State Government has issued Government Orders dated 08.05.2012 and 21.8.2015. By the aforesaid Government Orders, benefit of seniority extended to category of Scheduled Caste category candidates has been withdrawn and they have been reverted in the seniority list below the unreserved category candidates who were senior and promoted later on. Government Order dated 21.8.2015 provides that candidate of unreserved category shall not claim any additional emoluments or personal pay on the ground of their seniority.
8. The Principal Secretary Transport, Anubhag-3, Lucknow vide order dated 9.9.2015 passed an order reverting the candidate who had been earlier given the benefit of reservation in promotion namely, Satish Kumar, Anand Nirmal, Ashok Kumar, Munshi Lal and Rajesh Kardam. Later on vide order dated 27.1.2016 their new seniority have been fixed and placed at serial No. 231A, 232A, 235A, 235B & 235C.
9. Learned Senior Advocate on behalf of petitioners submitted that in light of aforesaid facts, now in the seniority list, serial No. 196 to 200 become vacant and same is still vacant. Undisputedly, petitioners are senior to similar Scheduled Caste category candidates, namely, Satish Kumar, Anand Nirmal, Ashok Kumar, Munshi Lal and Rajesh Kardam, therefore, after judgment of Apex Court, they are entitled for promotion from the date on which junior to them were promoted i.e. 31.12.2008 against the vacancy of selection year 2007-08 & 2008-09. After compliance of judgment of Apex Court, junior to them were kept below in seniority list, petitioners have not been given notional seniority from the date they were entitled i.e. 31.12.2008. He also pointed out that petitioners are not claiming any additional emoluments or personal pay in light of Government order dated 21.08.2015 and they are only claiming notional seniority.
10. He next submitted that for the appointment on the post of ARTO, there are three feeding cadres, 50% by direct recruitment and 50% by promotion. Further, out of 50% of promotion, 25% from Regional Inspector (Technical) and 25 % from Passenger/Goods Tax Officer. He also pointed out that between 31.12.2008 to 21.11.2012 from other feeding cadre appointment/promotion was made on the post of ARTO and they became senior to petitioners. Without notional seniority, they are deprived from promotion on the next higher post i.e. Regional Transport Officer (hereinafter referred to as R.T.O.). Therefore, petitioner has approached this Court by filing Writ-A No. 5956 of 2022 before the Lucknow Bench, which was dismissed as withdrawn vide order dated 14.9.2022 with liberty to file fresh petition. Thereafter, petitioners have filed another Writ-A No. 16767 of 2023 before this Court, which was disposed of vide order dated 12.10.2023 with direction to State Government to decide the representation of petitioner. Petitioners had submitted the representation along with certified copy of order dated 12.10.2023
11. After receiving the representation, State Government vide order dated 13.5.2023 has called report from Transport Commissioner. Upon that three members committee was constituted and Additional Divisional Transport Commissioner (Administration/Enforcement) alongwith letter dated 9.2.2023 submitted the report dated 2.2.2023 of three members committee before the Principal Secretary, U.P. Govt. recommending to grant the notional seniority to petitioners alongwith three other employees against the vacant posts for selection year 2007-08 & 2008-09. After receiving the said report, Joint Secretary, Transport Section-3, Lucknow vide order dated 3.5.2023 has raised six queries with regard to implementation of recommendation of three members committee. The said letter was replied by Transport Commissioner vide letter dated 21.7.2023 justifying the recommendation of three members committee for giving the notional seniority at Serial Nos. 196, 197 against the selection year 2007-08 & 2008-09, but surprising claim of petitioner for notional seniority at serial No. 196 & 197 has been rejected vide impugned order dated 21.11.2023. In the impugned order dated 21.11.2023, recommendation of three members committee as well as clarification of Transport Commissioner in favour of petitioners has not been disputed, but only ground taken is that they cannot be given any extra emoluments or special pay in terms of government order dated 21.8.2015 and cannot be granted notional seniority for selection year 2007-08 & 2008-09.
12. He firmly submitted that petitioners undertake before the Court that they would not claim any extra emoluments or special pay in terms Government Order dated 21.8.2015 in case of grant of notional seniority. He further pointed that due to non re-fixation of seniority of petitioners at serial No. 196 & 197 as recommended by three members committee, petitioners are suffering irreparable loss as they became junior to those candidates who were appointed/promoted on the post of ARTO from other feeding cadre between 31.12.2008 to 21.11.2022 and deprived from promotion on the next higher post i.e. R.T.O.
13. He also submitted that recently for notional promotion on the post of ARTO, Principal Secretary, Govt. of U.P. has written letter dated 21.1.2025 to Secretary, Uttar Pradesh Public Service Commission to grant notional promotion to the officers in the same department working on the post of Passenger/Goods Tax Officer. He has produced the letter no. iz0e0 142@rhl&3&2024 dated 21.1.2025, which is taken on record.
14. Learned Additional Chief Standing Counsel has opposed the submission and submitted that in terms of Government Order dated 21.8.2015, petitioners are not entitled for emoluments or special pay, therefore, notional promotion may not be granted.
15. Being confronted by the Court, he could not dispute the fact that seniority list from Serial Nos. 196 to 200 is still vacant and in case notional seniority is given to petitioners, seniority of none other personnel would be disturbed, there are three feeding cadres for the post of ARTO and further there is positive recommendation of three members Committee as well as clarification of Transport Commissioner in favour of petitioners for grant of notional promotion. He also could not dispute about the letter dated 21.1.2025 written by Principal Secretary, Govt. of U.P. to Secretary, Uttar Pradesh Public Service Commission for granting notional promotion on the post of ARTO to all the officers working on the post of Passenger/Goods Tax Officer.
16. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. It is undisputed that petitioners were senior at the time of recruitment before enforcement of Section 3(7) of Act, 1994 alongwith Rule 8A of Rules, 1991 i.e., reservation in promotion, they are entitled for promotion against the selection year 2007-08 & 2008-09 for which junior to them i.e. Scheduled Caste Category candidates have been promoted vide order dated 31.12.2008. In that eventuality, they were also entitled for their names in seniority list, at serial Nos. 196 & 197, which was earlier given to S.C. category candidates. In the counter affidavit, there is no denial of the fact that prior to amendment in Uttar Pradesh Government Servants Seniority (First Amendment) Rules, 2002 (inserting Rule 8A), petitioners are entitled for promotion against the selection year 2007-08 & 2008-09 alongwith seniority at serial No. 196 & 197 prior to Scheduled Caste category candidates.
17. I have perused the recommendation of three members committee report dated 2.2.2023 submitted alongwith letter dated 9.2.2023. Relevant part of the same is being quoted hereinbelow:-
"अतः समिति का यह सुविचारित मत ह कि मा० सर्वोच्च न्यायालय द्वारा पारित आदेश दिनांक 27.04.2012 के समादर में पदोन्नति में आरक्षण एवं परिणामी ज्येष्ठता का लाभ प्राप्त कर दिनांक 15.11.1997 से 28.04.2012 तक प्रोन्नत कर्मियो (श्री सतीश कुमार, श्री आनन्द निर्मल, श्री अशोक कुमार, श्री मुंशीलाल एवं श्री राजेश कदम) के पदावनत हो जाने से उक्त चयन वर्ष 2007-08 एवं 2008-09 में रिक्त 05 पदो के सापेक्ष श्री विनय कुमार सिंह व श्री सत्येन्द्र प्रकाश सिंह एवं अन्य 03 कार्मिको का चयन सहायक सम्भागीय परिवहन अधिकारी के पद पर करते हुए नियमानुसार ज्येष्ठता का निर्धारण शासन स्तर पर विचार कर किया जा सकता है।"
18. From perusal of the aforesaid report, it is apparently clear that there is clear recommendation in favour of petitioners and three other persons to grant seniority as prayed.
19. After receiving the report, State Government has sought six queries from the Transport Commissioner and thereafter, Transport Commissioner has given specific reply to the six queries on 21.7.2023. Relevant reply of the query is being quoted below:-
प्रस्तावित ज्येष्ठता निर्धारित किये जाने फलस्वरूप किसी अन्य कार्मिक की ज्येष्ठता प्रभावित तो नही होगी।
'kklu ds dk;kZy; vkns'k la0& 1482@30-3-14-73 जीडब्लू/1990, दि० 05.06.2014 द्वारा सीधी भर्ती / पदोन्नति से नियुक्त सहायक सम्भागीय परिवहन अधिकारी की ज्येष्ठता सूची निर्धारित की गयी। उक्त ज्येष्ठता सूची में चयन वर्ष 2007-08 एवं 2008-09 में संभागीय निरीक्षक (प्राविधिक) कोटे से चयनित कार्मिकों की ज्येष्ठता क्रमशः श्री सतीश कुमार (अनु०जा०) (ज्येष्ठता क्रमांक-196), श्री आनन्द निर्मल (अनु०जा०) (ज्येष्ठता क्रमांक- 197), श्री अशोक कुमार (अनु०जा०) (ज्येष्ठता कमांक- 198), श्री मुंशी लाल (अनु०जा०) (ज्येष्ठता कमांक- 199) एवं श्री राजेश कुमार (अनु०जा०) (ज्येष्ठता कमांक- 200) निर्धारित की गयी तथा श्री विनय कुमार सिह की ज्येष्ठता-227 एवं श्री सत्येन्द्र प्रकाश सिंह की ज्येष्ठता-229 निर्धारित की गयी।
पुनः पदावनति कार्मिकों में से सम्भागीय निरीक्षक संवर्ग के श्री सतीश कुमार, श्री आनन्द निर्मल, श्री अशोक कुमार, श्री मुंशीलाल एवं श्री राजेश कर्दम, जोकि संभागीय निरीक्षक (प्राविधिक) के पद से सहायक सम्भागीय परिवहन अधिकारी के पद पर पदोन्नति हुए थे। उ० प्र० शासन, परिवहन अनुभाग-3 के कार्यालय-आदेश सं0-1482/ 30-3-2014-73जीडब्लू / 90, दि० 05.06.2014 द्वारा जारी सहायक सम्भागीय परिवहन अधिकारी संवर्ग की ज्येष्ठता सूची को श्री सतीश कुमार, श्री आनन्द निर्मल, श्री अशोक कुमार, श्री मुंशीलाल एवं श्री राजेश कर्दम के पदावनति के उपरान्त उ० प्र० शासन, परिवहन अनुभाग-3 के कार्यालय-ज्ञाप सं0-178/ 30-3-16-73 जीडब्लू/'90, दि० 27.01.2016 द्वारा संशोधन करते हुए उक्त कार्मिकों की ज्येष्ठता क्रमशः श्री सतीश कुमार (अनु०जा०) (ज्येष्ठताः कमांक-231ए), श्री आनन्द निर्मल (अनु०जा०) (ज्येष्ठता कमांक- 232ए), श्री अशोक कुमार (अनु०जा०) (ज्येष्ठता क्रमांक- 235ए) श्री मुंशी लाल (अनु०जा०) (ज्येष्ठता 255 एवं श्री राजेश कुमार (अन्नु0जा0) (वरिष्ठता क्रमांक 235सी)
निर्धारित की गयी।
उक्त कार्मिकों की ज्येष्ठता नवीन निर्धारित हो जाने से ज्येष्धता क्रमांक 106 से 200 सक वर्तमान में किन्त्री कार्मिक की ज्येष्ठता निर्धारित नहीं है।
दिनाँक 11.01.2023 की समिति द्वारा बैठक कर उपलब्ध कराई गयी कार्यवृत्त के अनुसार भयम वर्ष 2007-00 पूर्व 2008-09 में रिक्त 05 पदों के सापेक्ष श्री विनय कुमार सिंह ये श्री सत्येन्द्र प्रकारा सिंह एवं अन्य ०३ कार्मिकों का चयन सहायक सम्भागीय परिवहन अधिकारी क पद पर नियमानुसार पदौन्नति कप ज्येष्ठता 196 से 200 तक निर्धारण की जाने हेतु अपना अभिमत दिया गया है।
अतः किसी अन्य कार्मिक की ज्येष्ठना प्रभावित नही होगी।
20. From perusal of the aforesaid reply, clarification of Transport Commissioner is also in favour of petitioners and three other persons with specific averment that in seniority list at serial no. 196 to 200 is still vacant and further after granting notional seniority, seniority of none other personnel shall be affected.
21. I have perused the counter affidavit as well as impugned order. There is no denial or dispute about the facts so mentioned in three members committee report as well as clarification of Transport Commissioner. The only reason is given that in terms of Government Order dated 21.8.2015, petitioners are not entitled for any additional emoluments or special pay, therefore, notional seniority for selection year 2007-08 & 2008-09 cannot be granted.
22. Further, this is not the first time claim of notional seniority has been raised by the officer of the department. Vide letter dated 21.1.2025, Principal Secretary, Govt. of U.P. has written letter to Secretary, U.P. Public Service Commission for granting notional promotion on the post of ARTO to the certain officers of the department, who was working on the post of Passenger/Goods Tax Officer, therefore, in light of such facts mentioned hereinabove, there is no legal impediment in granting the notional seniority and consequential benefit of promotion to petitioners also.
23. In light of facts of the case specially, recommendation of three members committee dated 2.2.2023 and clarification of Transport Commissioner dated 21.7.2023 it is apparently clear that in granting notional seniority to petitioners, there is no legal impediment except the Government Order dated 21.8.2015, which provides that candidate of unreserved category shall not claim any additional emoluments or personal pay on the ground of their seniority, otherwise petitioners are fully entitled for notional seniority for selection year 2007-08 & 2008-09 at serial No. 196 & 197 in seniority list.
24. Now coming to the present case, there is undertaking of the petitioners before this Court that they will not claim any additional emoluments or special pay in terms of Government Order dated 21.8.2015 and further in light of facts that serial No. 196 to 200 are sill vacant in seniority list and in granting the aforesaid seniority, seniority of none other personnel would be affected, therefore, petitioners are fully entitled for notional seniority and denial of that by the impugned order is absolutely bad and liable to be set aside.
25. Therefore, under such facts and circumstances of the case, the impugned order dated 21.11.2023 is hereby set aside and writ petition is allowed. No order as to costs.
26. Respondents are directed to grant notional seniority to petitioners placing them at Serial Nos. 196 & 197 in seniority list alongwith all consequential benefits. It is further directed that after fixation of notional seniority, if promotion is due on next higher post, process of promotion shall also be completed.
27. The aforesaid exercise shall completed maximum within a period of two months from the date of production of certified copy of this order.
28. It is made clear that petitioners shall not claim any additional emoluments or special pay as provided in Government Order dated 21.8.2015 after grant of notional seniority.
Order Date :- 25.4.2025
Junaid
