Jitendra Kumar vs State Of Uttar Pradesh And 25 Others
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Allahabad High Court

Jitendra Kumar vs State Of Uttar Pradesh And 25 Others on 29 April, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:65969-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 296 of 2025
 

 
Appellant :- Jitendra Kumar
 
Respondent :- State Of Uttar Pradesh And 25 Others
 
Counsel for Appellant :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Udayan Nandan
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Praveen Kumar Giri,J.

(Ref: Civil Misc. Delay Condonation Application)

1. Heard.

2. Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned. Office is directed to allot a regular number to the present appeal.

3. Application stands allowed.

Ref: Appeal

1. Heard Sri Ashok Khare, learned Senior counsel assisted by Sri Siddharth Khare, learned counsel for the appellant, Sri Shashi Nandan, learned Senior counsel assisted by Sri Udayan Nandan, learned counsel for the respondents and learned State counsel.

2. This appeal arises out of an order passed by learned Single Judge dated 5.11.2024, whereby two writ petitions instituted in respect of claim of seniority of lecturers appointed in different District Institute of Educational and Training (hereinafter referred to as the 'DIET') have been disposed of. Learned Single Judge has taken note of the provisions of Rule 5 of the U.P. Government Servants Seniority Rules, 1991 as also the provisions contained in the U.P. Teachers Education (Lecturers Cadre) Service Rules, 2010 (hereinafter referred to as the 'Rules of 2010') to issue a direction to the Commission to prepare a merit list of one selection so that the issue of seniority could be finally determined. The observations made by learned Single Judge contained in para 26 to 28 of the judgment reads as under:-

"26. The question if the petitioners were selected as a result of one selection within the meaning of Rule 5, so that all candidates appointed through direct recruitment would have to have their inter se seniority shown by the Commission in a merit list prepared for the purpose, is a matter to be examined in the first instance by the Appointing Authority, before whom determination of the final seniority list is still pending. No doubt, this question is essentially a legal one, besides the other question if all the lecturers comprise a single cadre or different cadres, subject-wise. But, it would be inappropriate for this Court to intervene at this juncture and decide these issues, when finalization of the seniority list is yet to be done by the Appointing Authority. At the same time, for whatever purpose and taking whichever view of the matter, the Appointing Authority needs the Public Service Commission to supply it with the combined merit list of lecturers, working with the SCERT and its units, besides the DIETs under its control, all selected on the basis of the advertisement dated 07.02.2014. The letter dated 01.05.2024 is quite detailed and we would refrain from commenting on its contents or purpose, except that it has been issued pursuant to the orders passed on 18.04.2024 in the present writ petition, asking the Principal Secretary, Basic Education to respond.

27. There is an earlier order passed in Writ-A No.3522 of 2024, decided on 06.03.2024, which directs the respondents to finalize the seniority list of lecturers, working with the SCERT and its units and the various DIETs, in accordance with law and also proceed with and finalize the promotion matters of these lecturers within time, indicated in that order. Apparently, the Director, SCERT, the Appointing Authority could not finalize the seniority list and a fortiori promotions to the cadre of senior lecturers because of the lack of provision of a combined seniority/ merit list of lecturers now working with the SCERT and its units, besides the various DIETs, all selected on the basis of the advertisement dated 07.02.2014. The Public Service Commission, in the opinion of this Court, is, therefore, obliged to provide the combined seniority list of lecturers selected on the basis of the advertisement dated 07.02.2014 to the Appointing Authority, to wit, the Director, SCERT.

28. In the circumstances, a mandamus is issued to the Public Service Commission to provide a merit/ seniority list of all lecturers selected on the basis of the advertisement dated 07.02.2014 to the Appointing Authority, to wit, the Director, SCERT within a month of the date of receipt of a copy of this order. A mandamus is further issued to the Director, SCERT to the effect that he will, upon receipt of the merit list/ seniority list from the Public Service Commission, grant to the lecturers selected on the basis of the advertisement dated 07.02.2014, a time period of 15 days last mentioned, to put in their objections to the tentative seniority list. As soon as the seniority list is received from the Public Service Commission, it will be published by the SCERT on its website. After lapse of the period of 15 days, the Director, SCERT will proceed to issue a final seniority list within a period of two months, disposing of all objections to the provisional seniority list submitted to him within the specified period of time. It is clarified that all contentions of parties regarding the principles applicable for the determination of seniority, including the definition of cadre will remain open to be decided by the Appointing Authority, and, upon issue of the final seniority list, it will be open to the parties to suit their rights before a competent forum on all contentions raised in this writ petition, if the party seeking to assail the final seniority list finds himself/ herself prejudicially affected upon determination of his/ her seniority made by the Appointing Authority."

3. The only ground on which the judgment of learned Single Judge is assailed is that once all issues relating to determination of merit was left open for consideration by the Commission it was not necessary for the Court to then direct preparation of a composite merit list in respect of lecturers appointed in different subject(s).

4. Though the appeal is opposed by Sri Shashi Nandan, learned Senior counsel representing the private respondents but there is no issue on the proposition that the preparation of seniority list will have to be specific to the cadre itself. Our attention has been invited to service rules of 2010 which defines the cadre under Rule 4 which reads as under:-

"4. Cadre of service.- (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of post therein shall, until orders varying the same are passed under sub-rule (1), be as given in the Appendix "A".

Provided that-

(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation; or

(ii) the Governor may create such additional permanent or temporary posts as he may consider proper."

5. Seniority is reckoned in Rule 19 which is reproduced hereinafter:-

"19. Seniority.- The seniority of persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time."

6. It is pointed out that the post included in Appendix 'A' are subject wise and, therefore, the preparation of merit list will necessarily be with reference to each subject, separately. This would be the situation even if lecturers are appointed in different subjects pursuant to composite selection.

7. Having examined the judgment of the learned Single Judge we find that the intent of learned Single Judge is merely to require the Commission to prepare the merit list for the purposes of determination of seniority. The question as to whether all lecturers comprise a single cadre or different cadres, subject wise, is also left open for consideration by the State. Once that be the situation we do not find any occasion to interfere with the direction of learned Single Judge, inasmuch as the authorities are expected to prepare the merit list keeping in view the statutory scheme noticed above. The direction of the learned Single Judge cannot be construed as requiring the Commission to prepare a common merit list in respect of lecturers in different subjects treating them to a single cadre. Such construction would certainly frustrate the observations of learned Single Judge in previous part of the order leaving the issues to be dealt with by the competent authority, at the first instance. Subject to the clarifications made above, this special appeal is disposed of.

Order Date :- 29.4.2025

RA