Uttarakhand High Court
Madan Lal vs Commissioner on 3 April, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition (S/S) No.2756 of 2017
Madan Lal ....Petitioner
Versus
Commissioner, State Election Commission
and Others ....Respondents
Present:-
Mr. Vinay Kumar, Advocate for the petitioner.
Mr. Sanjay Bhatt, Advocate for the respondent nos.1 and 2.
Mr. M.S. Bisht and Mr. Vijay Khanduri, Advocates for the
respondent no.3.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to Office
Memorandum dated 16.08.2017, issued by the respondent
no.2, the Secretary, State Election Commission, Uttarakhand
("the Commission"). By it, the inter-se seniority of the
petitioner and the respondent no.3 has been disturbed and
the respondent no.3 has been shown senior to the petitioner.
The petitioner claims that the inter-se seniority, as
determined by the Commission, on 17.04.2015, may be
restored.
2. Heard learned counsel for the parties and
perused the record.
3. Facts necessary to appreciate the controversy,
briefly stated, are as follows:-
(i) The petitioner did join as Junior Clerk in
Rural Development Department, in the State
of Uttar Pradesh on 15.05.1995.
(ii) The respondent no.3 was appointed on
compassionate ground in the Rural
Development Department on 16.11.1996.
(iii) After creation of the State of Uttarakhand,
positions were to be filled up in the
Commission. The cadre was determined.
(iv) The petitioner joined the Commission on
17.11.2001, as Junior Accountant.
(v) The respondent no.3 was attached with the
Commission on 13.09.2001, and he was
absorbed in the services of the Commission on
13.12.2001.
(vi) The petitioner was given ad-hoc appointment
against the vacant post of Junior Clerk on
17.01.2003. On the same date, the
respondent no.3 was given ad-hoc promotion
on the vacant post of Junior Clerk.
(vii) On 15.09.2006, the Commission absorbed
the services of its employees and regularised
their services. In this list, the date of
regularization of the respondent no.3 has
been shown as 13.12.2001, whereas, the date
of regularisation of the petitioner was shown
as 17.01.2003 (Annexure No.7).
(viii) On 09.01.2006, the Commission issued a
tentative seniority list, in which the petitioner
was shown below the respondent no.3. The
petitioner made his representation to it. The
representation of the petitioner did not find
favour with the Commission and by Office
Memorandum dated 28.07.2011, final
seniority list was published by the
Commission. Aggrieved by it, still, the
petitioner filed representation.
(ix) On 03.11.2014, the Commission constituted
a Four Members' Committee to look into the
matter.
(x) The Committee, so constituted, gave its
recommendation on 09.03.2015, and found
that the petitioner should have been treated
senior to the respondent no.3 for the following
reasons:-
(a) In the month of December, 2001,
the petitioner should have also
been considered for absorption in
the Commission.
(b) While filing up the vacancies in
promotional posts, one post ought
to have been filled up from
reserved category, but it was not
done, and the posts were filled up
from general category.
(c) In the year 2001, the name of the
petitioner was not considered for
absorption because, at that time, it
was treated that he could not have
been absorbed in the ministerial
cadre, as he belongs to the
accounts cadre, whereas,
subsequently, the petitioner was
absorbed in the ministerial cadre
only.
(d) Had one post been left for reserved
category, the petitioner would have
been promoted.
(e) On 17.04.2015, the Commission,
by an Official Memorandum,
revised the seniority list and shown
the petitioner senior to the
respondent no.3. The respondent
no.3 made representation against
it, which was rejected on
03.11.2015, and another
representation was dismissed on
12.01.2016.
(f) The respondent no.3 still made a
representation on 02.03.2016. On
it, the matter was referred to the
Department of Personnel.
(g) The Department of Personnel, by its
communication dated 06.06.2017,
laid down the rules to determine the
seniority. Thereafter, by the
impugned Office Memorandum,
earlier seniority list dated
17.04.2015 has been disturbed and
another seniority list was issued by
the Commission on 16.08.2017,
placing the respondent no.3 above
the petitioner.
4. Learned counsel for the petitioner would submit
the following points in his submission:-
(i) After the seniority list was made final, based
on the recommendation of the Committee on
17.04.2015, it could not have been disturbed
without any basis.
(ii) On a representation of the respondent no.3,
the matter was referred to the Department of
Personnel, and the Department of Personnel
set the following rules determining the
seniority:-
(a) Seniority is determined cadre wise.
If the source of recruitment are
different, can for both posts, joint
seniority list be prepared or not?
Its answer is in NEGATIVE,
because, where the source of
recruitment are different, their
seniority is determined in
respective source. Even otherwise,
if personnel are absorbed, it is
recorded in the absorption rules
that the seniority shall be
determined from the date of
absorption. If two personnel were
appointed on the same date in the
same cadre, in such cases, their
seniority would be determined from
the date of their substantive
appointment.
5. Learned counsel for the petitioner would submit
that the opinion, which was given by the Department of
Personnel on 06.06.2017, has not been followed. The matter
has not been examined, and by the Official Memorandum
Dated 16.08.2017, simply, without any reasons, seniority has
been decided.
6. Learned counsel appearing for the Commission
would submit that the absorption order dated 13.12.2001,
has not been challenged by the petitioner. He would submit
that after initial preparation of the seniority list, when the
representation of the petitioner was examined by a
Committee, the petitioner was shown above the respondent
no.3 in the seniority list, but it is argued that based on the
opinion received from the Department of Personnel, it has
been disturbed by the impugned Office Memorandum dated
16.08.2017. It is also argued that the petitioner has not
sought his seniority from the date of his initial appointment in
the parent cadre.
7. Learned counsel for the respondent no.3 would
submit that the respondent no.3 was absorbed in the
Commission on 13.12.2001, which is a date prior to the date
when the petitioner was absorved in the Commission. He
would place reliance on the principles of law, as laid down by
the Hon'ble Supreme Court in the case of Union of India and
Others Vs. Deo Narain and Others, (2008) 10 SCC 84. He
would refer to Para No.35 of it, which is as hereunder:-
"35. In our opinion, Renu Mullick, (1994) 1 SCC
373, also supports the view which we are inclined to
take, namely, that an employee who is transferred to an
other collectorate does not lose his/her past service for
the purpose of considering his/her eligibility. But, if
such transfer is voluntary or unilateral on condition that
he/she will be placed at the bottom of the seniority list
in the transferee department, the said condition would
bind him/her and he/she cannot claim seniority over
the employees in the transferee department."
8. The petitioner and the respondent no.3, both
were working in the Rural Development Department of the
State of Uttar Pradesh, when State of Uttarakhand was
created. Though they were working in the same department,
but they were under different cadre. It is admitted and
undisputed fact that the petitioner was working in the
Accounts Cadre of the Rural Development Department,
whereas, the respondent no.3 was working in the Ministerial
Cadre of the Rural Development Department.
9. In the parent cadre, admittedly, the petitioner
was appointed on 17.05.1995, in the accounts cadre,
whereas, the respondent no.3 was appointed in the
Ministerial cadre on 16.11.1996. In their department, their
cadres were different. As per the communication and the
opinion of the Department of Personnel, in such situation,
based on their initial appointment, seniority may not be
determined, because seniority relates to the cadre.
10. The respondent no.3 joined the Commission on
13.09.2001, whereas, the petitioner joined the Commission on
28.11.2001.
11. It is claimed by the petitioner that there was no
absorption rules in the Commission in the year 2001. This
fact is not denied by the Commission. But the fact remains
that on 13.12.2001, the services of the respondent no.3 were
absorbed in the Commission. The petitioner's case was not
considered. If there were no absorption rules, how could
absorption be made?
12. The question is that if there were no absorption
rules, why the petitioner was left on 13.12.2001 from the zone
of consideration of absorption? This has been replied by the
Committee, which was constituted on 03.11.2014 by the
Commission to look into the representation of the petitioner,
in which he has claimed that he is senior to the respondent
no.3. In its recommendation, the Committee has recorded
that in the month of December, 2001, the name of the
petitioner ought to have been considered for absorption. He
has been wrongly denied on the ground that he belongs to the
account cadre, because, as per the Committee, the
respondent no.3 was subsequently absorbed in the Ministerial
Cadre. The petitioner was left from the consideration zone of
absorption on 13.12.2001 for no fault of his.
13. It is argued on behalf of the Commission that
the order dated 13.12.2001 is not put to challenge. The
petitioner is not aggrieved by the absorption or the
respondent no.3. He is aggrieved by the seniority. If non
consideration of the petitioner for absorption on 13.12.2001 is
not justified, it will definitely have impact on the seniority. In
such case, it cannot be said that because the respondent no.3
was absorbed on 13.12.2001, therefore, he would be senior to
the petitioner.
14. The Committee, constituted by the Commission
to look into the representation of the petitioner against the
seniority list, in its report dated 09.03.2015, has given cogent
reasons for keeping the petitioner above in the seniority list to
the respondent no.3. Subsequent to it, when the Commission
sought opinion of the Department of Personnel, which is
Annexure No.21, dated 06.06.2014, the rules for determining
seniority was fixed by the Department of Personnel, and
conveyed to the Commission. The impugned Office
Memorandum reveals that the matter was not examined.
Simply, by a cryptic Office Memorandum dated 16.08.2017,
the seniority list has been upset. This Office Memorandum
may not be upheld. Even this order is not in conformity with
the guidelines, as given by the department of personnel.
Therefore, this Court is of the view that the impugned Office
Memorandum dated 16.08.2017, issued by the Commission,
is not in accordance with law. It deserves to be set aside.
15. The petition is allowed. The impugned Office
Memorandum dated 16.08.2017 is set aside. The inter-se
Seniority position of the petitioner and the respondent no.3,
as has been determined by the Office Memorandum dated
17.04.2015, is restored. .
(Ravindra Maithani, J.)
03.04.2024
Ravi Bisht
