Ram Singh Bora vs State Of Uttarakhand & Others
2021 Latest Caselaw 13 UK

                                                              Reserved judgment

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                  Writ Petition No. 20 of 2018 S/S)
                 (Under Article 226 of the Constitution of India)


Ram Singh Bora                                                  .....Petitioner

                                    Versus

State of Uttarakhand & others                                ....Respondents

Mr. Navnish Negi, Advocate for the petitioner.
Mr. Virendra Singh Rawat and Mr. Narain Dutt, Brief Holders for the State.
Mr. Narendra Bali, Advocate for respondent no.5.
None present for the respondent no.6
Hon'ble Lok Pal Singh, J.

By means of this petition, petitioner has sought following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 27.12.2017 contained in annexure no.6 to the writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 5 to refix the seniority of the petitioner vis a vis respondent no.6.

2. Factual matrix of the case is that petitioner was appointed as Class IVth Employee in the Kishan Vidhayalaya Inter College, Laksar, District Haridwar on 01.01.1992. The said college is a Grant in aid institution duly governed by the provisions of Uttarakhand School Education Act, 2006. Thereafter, as per the recommendation of Promotion Committee, the petitioner got promoted to the post of Assistant Clerk on 30.06.2011. It is contended that in the said institution one Kunwar Pal Singh i.e. respondent no.6 who was appointed as Class IVth employee on 16.08.1996 under the reserved quota of Scheduled Caste Category, was also got promoted on the post of Assistant Clerk on 05.06.2004. Petitioner is

aggrieved by the impugned order dated 27.12.2017, whereby the petitioner has been placed on the bottom of the seniority list.

3. Heard learned counsel for the parties and perused the material available on record.

4. Learned counsel for the petitioner would submit that the respondent no.6 was junior to the petitioner in the feeding cadre i.e. class IV employee but due to accelerated promotion of respondent no.6, he was promoted in the year 2004 whereas the petitioner got promoted in the year 2011. He would further submit that the petitioner's length of service in the institution is much longer than the respondent no.6, therefore, the impugned order fixing the seniority of the petitioner below to respondent no.6 is arbitrary and illegal. He would further submit that the petitioner has made representation before the Principal of the institution to refix the seniority of the petitioner, which was referred to the office of Chief Education Officer. The Chief Education directed the Committee of Management to fix the seniority as per the regulations but no action has been taken by the committee of Management. Feeling aggrieved, the petitioner preferred WPSS No. 3397 of 2017 before this Court. This Court vide judgment and order dated 04.12.2017 disposed of the said writ petition with the direction to decide the representation of the petitioner in accordance with law. Thereafter, the order impugned dated 27.12.2017 has been passed, whereby the respondent no.5 turned down the seniority of the petitioner and upheld the seniority of respondent no.6 on the basis of the promotional year on the post of Assistant Clerk and ignored the services rendered in the feeding cadre by the petitioner. He would further submit that in absence of any provision for consequential seniority "catch-up" rule will be applicable. In support of his case he referred the judgment of Hon'ble Apex Court rendered in

B.K. Pavitra Vs. Union of India and others reported in (2017) 4 SCC 620 in which it is held that in the absence of any provision for consequential seniority in the regulations governing the seniority, the catch up rule will be applicable and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. Paragraph 28 of the said judgment is extracted below:

"28. In S.Panneer Selvam v. State of T.N., question before the Court was whether in absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate, claim for consequential seniority could be accepted. Answering the question in the negative, it was held that in absence of provision for consequential seniority, "catch-up" rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted. Observations relevant in this regard are as follows:

34. If we look at the above comparative table of the service particular of the appellants and the respondents, it is seen that the contesting appellants, his seniority is automatically accelerated at an unprecedented rate and as on 1-4-2004 his seniority rank as ADE is 150 and seniority of V. Appadurai is 120. The appellants who are qualified and senior than the contesting respondents are placed much below in rank in comparison to the person belonging to the reserved class promotees who were promoted following the rule of reservation. It is to be noted that the private respondents in the present case have been promoted temporarily under Rule 39(a) and Rule 10(a)(i) of the General Rules with the condition that their inclusion in the promotional order shall not confer on them any right whatsoever in the service. Determination of seniority is a valid aspect in the service career of any employee and his future promotion is dependent on this. Therefore, determination of seniority

must be based on some principles which are just and fair. In the absence of any policy decision taken or rules framed by the State of Tamil Nadu regarding Tamil Nadu Highways Engineering Service, accelerated promotion given to the respondent following rule of reservation in terms of Rule 12 will not give them consequential accelerated seniority.

36. In the absence of any provision for consequential seniority in the rule, the "catch-up rule" will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4- A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained."

5. A counter affidavit has been filed by the respondent no.5 stating therein that the promotion of the respondent no.6 took place in the year 2004 whereas the petitioner is promoted in the year 2011, therefore, the seniority of the respondent no.6 has been considered from the date of his promotion, which is much earlier to the petitioner. It is further stated that the case of respondent no.6 is different as he was promoted to the post of Assistant Clerk under the reserved category.

6. It was the contention of learned counsel for the petitioner that though the respondent no.6 was promoted earlier to the petitioner but being senior to respondent no.6 in the feeding cadre of Assistant Clerk would regain his seniority on the basis of Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and also on the basis of the general principle of "catching up". He

would refer Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002, which reads as under:

Rule 6. Seniority where appointment by promotion only from a singly feeding cadre- Where according to the service rules, appointments are to be made only by promotion from a singly feeding cadre, the seniority inter se of persons so appointed shall be same as it was in the feeding cadre.

Explanation-A person senior in the feeding cadre shall even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre."

7. In the instant case, indisputably the petitioner was appointed on 01.01.1992 and respondent no.6 was appointed on 16.08.1996 in the feeding cadre. Petitioner is senior to the respondent no.6 as per his date of appointment. However, petitioner promoted on 30.06.2011 whereas respondent no.6 was promoted on 05.06.2004 and the respondent no.6 who was junior to the petitioner as per their initial date of appointment have been placed above to the petitioner in the seniority list, considering the date of his promotion. Law on the issue of catch up rule is no more res integra. Hon'ble Apex Court in the catena of judgments has held that Catch up rule means that if a senior candidate of general category is promoted after SC/ST candidates, he would regain his seniority in promotion over the juniors promoted ahead of him under the reserved vacancies. Hon'ble Supreme Court in the cases of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., reported in (1995) 6 SCC 684, Ajit Singh Januja & Ors. (Ajit Singh-I) Vs. State of Punjab & Ors., reported in (1996) 2 SCC 715 and Ajit Singh (II) & Ors. Vs. State of Punjab & ors., reported in (1999) 7 SCC 209, introduced the catch-up rule and held that if the senior general candidate is promoted then he will regain his seniority on promotion post above junior reserved promotes. Para 27 of the

judgment in the case of Union of India & Ors. Vs. Virpal Singh Chauhan is reproduced as under:-

"We are of the opinion that the aforesaid circulars/letters providing for reservation in favour of Scheduled Castes/Scheduled Tribes candidates, rosters and their operation and on the subject of seniority as between general candidates and reserved category candidates, being in the nature of special rules prevail over the general instructions contained in Volume-I of the Indian Railway Establishment Manual including those contained in Paras 306, 309 and 319 et al. Accordingly, we agree with the conclusion of the Tribunal in the order under appeal (Virpal Singh Chauhan) though we may not agree with all the reasons given by the Tribunal. In other words, we may not agree with the view expressed by the Tribunal that a harmonious reading of Clauses (1) and (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior general category candidate in the feeder category shall necessarily be junior in the promoted category to such general category candidate. No such principle may be said to be implicit in the said clauses. But inasmuch the Railway Board's circulars herein concerned do provide specifically for such a situation and since they cannot be said to be violative of the constitutional provisions, they must prevail and have to be given effect to. It is not brought to our notice that the said instructions are inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf."

8. In view of the well settled proposition in law, the writ petition is allowed. Impugned order dated 27.12.2017 is hereby quashed. The respondent/competent authority is directed to re-fix the seniority of the petitioner as per the dictum of judgment (supra) and in accordance with Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and thereafter the inter se seniority list be prepared in accordance with law. Said exercise be completed within a period of three months from the date of production of certified copy of this order.

9. No order as to costs.

(Lok Pal Singh, J.) Mamta Dated: 05.01.2021