Allahabad High Court
Ashok Kumar Sharma vs State Of U.P. Through Secy. on 29 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - A No. - 2334 of 1997
Ashok Kumar Sharma
..Petitioner(s)
Versus
State of U.P. Through Secy.
..Respondent(s)
Counsel for Petitioner(s)
:
Y.s.lohit, Sandeep Dixit, Vaibhav Singh, Varadraj Shreedutt Ojha
Counsel for Respondent(s)
:
C.S.C., A.p. Singh, Ram Prasad Dwivedi
Along with
WRIT - A No. - 7364 of 2015
Pradeep Kumar Mishra and 3 Ors.
..Petitioner(s)
Versus
State of U.P. Thru Prin.secy.home Civil Sectt.lucknow and Ors.
..Respondent(s)
Counsel for Petitioner(s)
:
Dr. Ravi Kumar Mishra, Umeshwar Pratap Singh
Counsel for Respondent(s)
:
C.S.C., A.p. Singh
Court No. - 17
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Sri Varadraj Shreedutt Ojha, the learned counsel for the petitioner in Writ-A No.2334 of 1997, Dr. Ravi Kumar Mishra, the learned counsel for the petitioners in Writ-A No.7364 of 2015, Sri U. C. Singh, the learned Additional Chief Standing Counsel appearing on behalf of the State, Sri A. P. Singh, the learned Counsel representing the opposite parties no.4 and 5 and Sri Ram Prasad Dwivedi, the learned counsel for the opposite parties no.6 to 8 in Writ-A No.2334 of 1997.
2. Writ-A No.2334 of 1997 has been filed by five petitioners for challenging validity of an order dated 28.11.1996 publishing final seniority list of Radio Maintenance Officer on the ground that it is violative of the provisions contained in Rule 5 (5) and 17 of U. P. Police Subordinate Service Rules, 1982. The petitioners have further prayed for fixation of their seniority in accordance with the aforesaid Rules and they have sought issuance of a writ of mandamus commanding the opposite parties to consider the petitioners for promotion to the post of Radio Inspector at least from the date Radio Maintenance Officers of subsequent batches i.e. 19th and 20th batches, have been promoted to the post of Radio Inspector and they have also prayed for being granted consequential benefits.
3. Briefly stated the facts of the case are that the petitioners were appointed on Class III posts of Radio Maintenance Officer in the pay scale of Rs.1640-2900/- by means of an order dated 13.06.1994. The quota for filling posts in Subordinate Police Radio Services is in the ratio of 3:1 for promotees and direct recruits as per the relevant Service Rules of 1982. The posts of Radio Inspector are to be filled by promotion of Radio Maintenance Officer. Therefore, the seniority list of Radio Maintenance Officer assumes significance.
4. Rule 5 of U. P. Police Radio Subordinate Services Rules, 1982 provides that appointments to the posts of Radio Maintenance Officer will be made by- (i) direct recruitment as provided in Rule 15 and (ii) from promotion of permanent Radio Station Officers. The Rule further provides that recruitment from both the sources shall be made in such a manner as to ensure that 75% posts are filled up by promotion and the remaining posts are filled by direct recruitment. Rule 17 provides for preparation of a combined seniority list and it provides that the combined seniority list shall be prepared in such a manner as maintains the prescribed percentage. The first three positions in the seniority list will be occupied by the persons appointed by direct recruitment, the fourth position will be held by a person appointed by promotion, the fifth, sixth and seventh positions will be occupied by the persons appointed by direct recruitment, the eighth position will be held by a person appointed by promotion and so on and so forth.
5. Rule 22 contains provision for fixation of seniority. It provides that except as otherwise provided, the seniority of a persons shall be maintained from the date of their initial substantive appointment. The persons appointed by promotion shall be placed as per their seniority in the cadre from which they have been promoted. Sub Rule (4) of Rule 22 provides that where appointments are made by promotions as well as by direct recruitment and separate quota is prescribed for making appointments from each of the sources, their inter-se seniority will be maintained as per the combined list prepared as per the provisions contained in Rule 17 so as to ensure that prescribed percentage is maintained.
6. The impugned final seniority list dated 28.11.1996 mentions the names of promotee employees from serial no.9 to 83 consecutively and the first direct recruit has been placed at serial no.84. This placement in the seniority list has been challenged on the ground that it violates the provisions of Rule 17 and 22 of the Rules of 1982.
7. The State has filed a counter affidavit opposing the writ petition stating that there is no illegality in the seniority list. Para 12 of the counter affidavit refers to Rule 17 of Rules of 1982 but there is no averment justifying placement of promotees from serial no.9 to 83 consecutively.
8. The State has filed a supplementary counter affidavit stating that the petitioners had filed their objections against the tentative seniority list and the final seniority list has been published after taking into consideration the objections of the petitioners. It has further been stated in the supplementary counter affidavit that in the earlier service rules of Radio Station Officers were promoted to the post of Radio Maintenance Officer but now both the posts have been combined and the post of Radio Sub Inspector has been created.
9. Sri U. C. Singh, the learned Additional Chief Standing Counsel for the State of U. P. has submitted that the seniority list has been prepared keeping in view the provisions contained in Service Rules of 1982 read with Government Servant Seniority Rules, 1991.
10. Sri Ram Prasad Dwivedi, the learned counsel for the opposite parties no.6 to 8 has submitted that the petitioners have not impleaded all the affected persons as opposite parties to the writ petition and the petitioners have impleaded merely 7 persons in representative capacity.
11. In this regard, it is to be noted that it is recorded in the order dated 27.10.2015 passed in this case that the learned Counsel for the petitioner had requested for being permitted to implead the persons likely to be affected in representative capacity as 97 persons are placed above the petitioners in violation of Rule 22 of the Rules of 1982. This request was accepted and he was permitted to implead the persons likely to be affected in the representative capacity. This order has attained finality and it is in compliance of this order that the petitioners had filed an application for impleadment of two affected persons in representative capacity, which has been allowed by means of an order dated 02.12.2015 and those persons have been impleaded as the opposite parties no. 4 and 5 and they have filed their counter affidavit. Thereafter, the petitioners filed another application for impleadment of five more affected persons as opposite parties no. 6 to 10, which was allowed by means of an order dated 24.01.2023 and the opposite parties 6 and 7 have filed their separate counter affidavits. Therefore, the affected persons are sufficiently represented in representative capacity and there is no substance in the objection raised by the learned Counsel for the opposite parties no. 6 to 8 regarding non-impleadment of all the affected persons as opposite parties to the petition.
12. The learned counsel for the opposite parties no.6 to 8 has next submitted that acting upon the impugned seniority list promotions have already been made which have not been challenged by the petitioners in the instant petitions. He has submitted that since the petitioners had joined the posts subsequent to the promotees they have been placed below the promotees in the seniority list.
13. Dr. Ravi Kumar Mishra, the learned counsel for the petitioners in Writ-A No.7364 of 2015 has submitted that the promotions to the post of Radio Maintenance Officer to the post of Radio Inspector made on 06.11.2015 have been challenged in this writ petition on the ground that the promotions have been made on the basis of a wrong seniority list prepared in violation of Rules 17 and 22 of the 1982 Rules, which seniority list is already under challenge in Writ A No. 2334 of 1997 and, therefore, if the seniority list is held to be invalid, the obvious consequence will be that the promotions made on the basis of the invalid seniority list would become illegal.
14. Sri Dwivedi, the learned counsel for the opposite parties no.6 to 8 has placed reliance on a judgment of Hon'ble Supreme Court in the case of Sushil Pandey v. State of U.P.: (2024) 14 SCC 797, wherein the Hon'ble Supreme Court has ordered that seniority of the candidates should be determined treating the entry into the cadre of both sets of candidates (i.e. promotees and direct recruits) on 30.01.1996 and the seniority position should be recast on that basis. This direction has been issued by the Hon'ble Supreme Court invoking its powers under Article 142 of Constitution of India.
15. The controversy involved in Sushil Pandey (Supra) was decided on the basis of the then prevailing Rules, which were Uttar Pradesh Police Radio Service Rules, 1979. The relevant provisions contained in the 1979 Rules were as follows: -
17. Combined selection list. If the appointment has been made through direct recruitment and promotion both, then one combined selection list would be prepared, wherein the name of the candidates would be taken from the list prepared under Rule 15 and Rule 16 in such a manner that there would be an ordained ratio of the direct recruitment and promotional officers. The first name would be from the list prepared under Rule 16.
***
22. Seniority. The seniority of the post on any category of post in the service, would be the same which has been determined since the date of original appointment order and if two or more persons have been appointed, then the same would be determined in the serial, in which their names have been kept in the appointment order.
However,
One The mutual seniority of the persons appointed in the service as direct recruitment in the service, would be the same as determined at the time of selection.
Two the mutual seniority of the persons appointed through the promotion in the service would be, which he was bearing on the original post at the time of promotion.
16. On the question of intra-stream seniority the Hon'ble Supreme Court isued the following direction: -
20.We, accordingly, hold and direct that the seniority of the candidates including the appellants should be determined treating the entry into the cadre of both sets of candidates (i.e. promotees and direct recruits) on 30-1-1996 and the seniority position should be recast on that basis. We issue this direction invoking our jurisdiction under Article 142 of the Constitution of India. On the question of intra-stream seniority, the provision of Rule 22 shall be followed. In the recast list, however, the position for the posts left vacant on death of dead or superannuated officers shall be treated as fresh vacancies and filled up through fresh selection process.
17. Therefore, even as per the aforesaid judgment relied upon by the learned counsel for the opposite parties no.6 to 8 seniority list has to be prepared keeping in view the provisions contained in Rule 17, which is different in the Rules of 1982 from the Rules of 1979.The relevant provisions of the 1982 Rules are as follows: -
17- संयुक्त चयन सूची--यदि भर्ती के किसी वर्ष में नियुक्ति सीधी भर्ती और पदोन्नति दोनों ही प्रकार से की जानी हो, तो एक संयुक्त चयन सूची तैयार की जायगी, जिसमें अभ्यर्थियों के नाम सुसंगत सूचियों में से ऐसी रीति से लेकर रखे जायेंगे कि विहित प्रतिशत बना रहे, सूची में पहला नाम पदोन्नति द्वारा नियुक्त व्यक्ति का होगा :
दृष्टान्त-
(एक) यदि किसी सेवा में नियुक्ति सीधी भर्ती (सी०भ०) और पदोन्नति (प) दोनों प्रकार से 75:25 के अनुपात में की जानी हो और किसी विशिष्ट वर्ष में, 20 रिक्तियों हों, तो ऐसी स्थिति में 15 रिक्तियां सीधी भर्ती किये गये व्यक्तियों को और 5 रिक्तियां पदोन्नति किये गये व्यक्तियों को दी जायगी चयन किये जाने के पश्चात संयुक्त चयन सूची निम्नलिखित चक्रानुक्रम में तैयार की जायगी:-
1- प० 11- सी०भ०
2- सी०भ० 12- सी०भ०
3- सी०भ० 13- प०
4- सी०भ० 14- सी०भ०
5- प० 15- सी०भ०
6- सी०भ० 16- सी०भ०
7- सी०भ० 17- प०
8- सी०भ० 18- सी०भ०
9- प० 19- सी०भ०
10- सी०भ० 20- सी०भ०
(दो) यदि उपर्युक्त स्थिति में किसी वर्ष (एक्स) में, विहित कोटा के अनुसार भर्ती के बजाए, 8 व्यक्ति पदोन्नति द्वारा और 12 व्यक्ति सीधी भर्ती द्वारा भर्ती किये जायं और नियम या जहां कोई नियम न हो, वहां तत्समय प्रवृत्त सुसंगत आदेश किसी भी स्त्रोत से न भरी गई रिक्तियों को अन्य स्रोत से भरे जाने की अनुज्ञा न दे और सीधी भर्ती के कोटे की कमी को दूसरे वर्ष (वाई) में, 20 रिक्तियों में से 18 सीधी भर्ती से और 2 पदोन्नत व्यक्तियों की भर्ती से पूरा किया जाय तो (एक्स) और (वाई) वर्ष की संयुक्त चयन सूची निम्नलिखित चक्रानुक्रम में तैयार की जायगी :-
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(एक्स वर्ष) (वाई) वर्ष
--------------------------------------------------------------------------------------------------
1- प 10- सी०भ० ) 1- सी०भ० एक्स वर्ष 11- सी०भ०
2- सी०भ० 11- सी०भ० ) 2- सी०भ० क न भरा 12- प (एक्स) वर्ष का आधिक्य
3- सी०भ० 12- सी०भ० ) 3- सी०भ० गया कोटा 13- सी०भ०
4- सी०भ० 13- प ) 4- प (एक्स) वर्ष का आधिक्य 14- सी०भ०
5- प 14- सी०भ० 5- सी०भ० 15- सी०भ०
6- सी०भ० 15- सी०भ० 6- सी०भ० 16- प
7- सी०भ० 16- सी०भ० 7- सी०भ० 17- सी०भ०
8- सी०भ० 17- प 8- प (एक्स) वर्ष का आधिक्य 18- सी०भ०
9- प 9- सी०भ० 19- सी०भ०
10- सी०भ० 20- प
(तीन) यदि, दृष्टांत (दो) में वर्णित मामले में, नियम या जहां कोई नियम न हो, वहां तत्समय प्रवृत्त सुसंगत आदेश में किसी स्रोत से भरी न गई रिक्तियों को विनिदिष्ट आकस्मिकता में अन्य स्रोतों से भरे जाने की व्यवस्था हो और सीधी भर्ती की भरी न गई तीन रिक्तियां पदोन्नति द्वारा इस प्रकार भरी जायं तो संयुक्त चयन सूची निम्नलिखित चक्रानुक्रम में होगी:--
1- प 11- सी०भ०
2- सी०भ० 12- सी०भ०
3- सी०भ० 13- प
4- सी०भ० 14- सी०भ०
5- प 15- सी०भ०
6- सी०भ० 16- सी०भ०
7- सी०भ० 17- प
8- सी०भ० 18- प
9- प 19- प
10- सी०भ० 20- प
* * *
22-- ज्येष्ठता- (1) एतपश्चात् यथा उपबन्धित के सिवाय किसी श्रेणी के पद पर व्यक्तियों की ज्येष्ठता मौलिक नियुक्ति के आदेश के दिनांक से, और यदि दो या अधिक व्यक्ति एक साथ नियुक्त किये जायं तो उस क्रम में अवधारित की जायगी, जिसमें उनके नाम नियुक्ति के आदेश में रखे गये हों:
परन्तु यदि नियुक्ति के आदेश में कोई ऐसा विशिष्ट पिछला दिनांक विनिर्दिष्ट किया जाय, जब से किसी व्यक्ति की मौलिक रूप से नियुक्ति की जानी हो तो उस दिनांक को मौलिक नियुक्ति के आदेश का दिनांक समझा जायगा और, अन्य मामलों में, उसका तात्पर्य आदेश जारी किये जाने के दिनांक से होगा :
परन्तु यह और कि यदि किसी एक चयन के सम्बन्ध में एक से अधिक नियुक्ति के आदेश जारी किये जायं, तो ज्येष्ठता वही होगी, जो नियम 18 के उपनियम (3) के अधीन जारी किये गये नियुक्ति के संयुक्त आदेश में उल्लिखित को जाय।
(2) किसी एक चयन के परिणाम के आधार पर सीधे नियुक्त किये गये व्यक्तियों की परस्पर ज्येष्ठता वही होगी जो चयन समिति द्वारा अवधारित की जाय :
परन्तु सीधी भर्ती किया गया कोई अभ्यर्थी अपनी ज्येष्ठता खो सकता है, यदि किसी रिक्त पद का उसे प्रस्ताव किये जाने पर वह विधिमान्य कारणों के बिना कार्यभार ग्रहण करने में विफल रहे। कारणों का विधिमान्यता के सम्बन्ध में नियुक्ति प्राधिकारी का विनिश्चय अन्तिम होगा।
(3) पदोन्नति द्वारा नियुक्त किये गये व्यक्तियों की परस्पर ज्येष्ठता वही होगी, जो उस संवर्ग में रही हो, जिससे उन्हें पदोन्नति किया गया।
(4) जहां नियुक्ति पदोन्नति और सीधी भर्ती दोनों ही प्रकार से या एक से अधिक स्रोत से की जाय और प्रत्येक स्रोत का अलग अलग कोटा विहित हो, वहां उनकी परस्पर ज्येष्ठता नियम 17 के अनुसार तैयार की गयी संयुक्त सूची में चक्रानुक्रम में, उनके नाम रखकर ऐसी रीति से अवधारित की जायगी कि विहित प्रतिशत बना रहे :
परन्तु-
(एक) जहां किसी स्रोत से नियुक्तियां विहित कोटा से अधिक की जाय, वहां कोटा से अधिक नियुक्त किये गये व्यक्तियों को ज्येष्ठता के लिए, ऐसे अनुवर्ती वर्ष या वर्षों में जिसमें / जिनमें कोटा के अनुसार रिक्तियां हों, नीचे रखा जायगा।
(दो) जहां किसी स्रोत से नियुक्तियां विहित कोटे से कम हो और ऐसी भरी न गई रिक्तियों के प्रति नियुक्तियां अनुवर्ती वर्ष या वर्षों में की जाय, वहां इस प्रकार नियुक्त व्यक्तियों को किसी पूर्ववर्ती वर्ष की ज्येष्ठता नहीं मिलेगी, किन्तु उन्हें एसे वर्ष की जिस वर्ष में उनकी नियुक्ति की जाय, ज्येष्ठता मिलेगी, किन्तु इस नियम के अधीन तैयार की जाने वाली उस वर्ष को संयुक्त सूची में उनके नाम सबसे ऊपर रखे जायेंगे जिसके बाद नियुक्त किये गये अन्य व्यक्तियों के नाम, चक्रानुक्रम में रखे जायेंगे।
(तीन) जहां, नियम या विहित प्रक्रिया के अनुसार किसी स्रोत से भरी न गई रिक्तियां, सुसंगत नियम या प्रक्रिया में उल्लिखित परिस्थितियों में, अन्य स्रोतों से भरी जाय और इस प्रकार कोटा से अधिक नियुक्तियां की जायं, वहां इस प्रकार नियुक्त किये गये व्यक्तियों को उस वर्ष विशेष की ज्येष्ठता दी जायगी, मानों उन्हे अपने कोटा की रिक्तियों के प्रति नियुक्त किया गया हो।"
18. Therefore, as per the provisions contained in Rules 17 and 22 of the Rules of 1982, the promotees and direct recruits promoted in the same selection year had to be placed in the seniority as per the quota rota principle, which has not been done in the present case.
19. The Honble Supreme Court also took into consideration the provisions contained in Rule 8(3)(ii) of the U. P. Government Servants Seniority Rules, 1991, which provides that: -
8.Seniority where appointments by promotion and direction recruitment.(1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean of issuance of the order:
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection,
(a) Through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotes vis--vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations
(1) Where the quota of promotes and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order
First
Promotee
Second
Direct Recruits
and so on.
(2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order
First
Promotee
Second to fourth
Direct recruits
Fifth
Promotee
Sixth to eight
Direct recruits
and so on:
Provided that
(i) Where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii)Where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments, are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) Where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other sources and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota.
20. Keeping in view the foregoing discussion, I am of the view that the seniority list of Radio Maintenance Officers placing promotees continuously in block from serial numbers 9 to 83 violates Rule 17 of Rules of 1982 and the same is unsustainable in law.
21. Moreover, the names of the dead or retired employees have been removed from the seniority list, which has also created an anomaly. A copy of a Government Orders dated 25.06.1984 has been annexed with the rejoinder affidavit filed in reply to the counter affidavit filed on behalf of the opposite party nos, 4 and 5, which provides that the names of even those candidates should be included in the seniority list, who were there in the eligibility list and who have retired or dead before completion of selection. Another Government Order dated 26.10.1985 states that after a thorough reconsideration of the matter the Government has decided that the aforesaid arrangement is most appropriate and retired/dead employees names are also to be included in the eligibility list.
22. In Syed Zia Abbas Razvi and others Vs. State of U.P. and others: (2012) SCC OnLine Alld. 4597 the Division Bench of this court has held as follows:
"13. The other blunder that has been committed is that the names of the superannuated/dead officers were removed from the seniority list and in their place the other promotee officers were pushed up, this exercise is absolutely unheard in the service jurisprudence. This mistake, by itself, made the seniority list unsustainable under law. If this exercise of the respondents is permitted to prevail, then it would result in great injustice to the officers who on their merit join the services at an early age because in that situation, the officers who were senior to them and are older in age shall stand superannuated and in their place the officers who are junior to them shall be pushed up, making them juniors to officers, who were subsequently appointed or were appointed in the vacancies of the following years. The vacancies so fallen by the superannuation or by the death of the officers were to be filled up by way of fresh selection process, therefore, the impugned seniority list is unsustainable under law and deserves to be quashed."
23. Therefore, the seniority list should be prepared afresh by including the names of all the officers appointed in a particular selection year even if they have superannuated or dead or have left the service for any other reason.
24. In view of the foregoing discussions, I am of the considered view that the impugned final seniority list dated 28.11.1996 is not sustainable in law and is liable to be quashed. Consequently, the promotions made relying on the aforesaid seniority list also become unsustainable in law.
25. Accordingly, both the writ petitions areallowed. The seniority list is quashed. The opposite parties are directed to prepare a fresh seniority list of Radio Maintenance Officers keeping in view the provisions contained in Rules 17 and 22 of the Rules of 1982.
26. The petitioners shall be given all consequential benefits of re-fixation of seniority, including promotion from the dates their juniors were promoted.
27. As a long time has elapsed since filing of the writ petition and several persons have been promoted and several of those have already retired from service after putting in long years in service, to balance the equities it is provided that the amounts paid as salary and allowances to the employees promoted on the basis of wrong seniority list shall not be recovered from them.
October 29, 2025
Ram.
