Durga Ram Arya vs State of U.P. and Others

J.S. Khehar, C.J.—The petitioner was inducted into the service of the Agriculture Department of the composite State of Uttar Pradesh as a Statistical Inspector and Supervisor on ad-hoc basis in 1972. After the induction of the petitioner into service, 35 persons who were earlier holding the posts of Statistical Inspectors and Supervisors were confirmed by an order dated 4.7.1978. The petitioner was not confirmed against the post of Statistical Inspector and Supervisor along with the aforesaid 35 persons.

By an order dated 24.4.1980, in exercise of powers vested in the respondents under the U.P. Regularisation of Ad-hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as the 1979 Rules), the services of the petitioner were regularised against the post of Statistical Inspector and Supervisor.

Onward promotion from the post of Statistical Inspector and Supervisor is to the post of Statistical Officer. Since the petitioner was not confirmed against the post of Statistical Inspector and Supervisor, he claimed confirmation with effect from 1984. He also claimed promotion to the post of Statistical Officer with effect from 1987. Since the aforesaid claim raised by the petitioner was not being acceded to, the petitioner approached the Public Services Tribunal, Uttaranchal (Nainital Bench) by filing Claim Petition No. 37/T/2001. The aforesaid claim petition was, however, dismissed by the Public Services Tribunal vide an order dated 28.4.2006. Through the present Writ Petition, the petitioner has again claimed promotion to the post of Statistical Officer with effect from 1987. He has also impugned the order passed by the Public Services Tribunal, Uttaranchal (Nainital Bench) on 28.4.2006.

It is not a matter of dispute that the Uttar Pradesh Agriculture Service, Class II Rules, 1937 (hereinafter referred to as the 1937 Rules) regulate the issue of promotion from the post of Statistical Inspector and Supervisor to the post of Statistical Officer. Rule 16 of the aforesaid Rules is relevant for determining the eligibility of the petitioner. Rule 16 is accordingly being extracted hereunder:

- (1) When recruitment is to be made by promotion to Section A of the cadre the Director of Agriculture will draw up a list of such members of the ministerial establishments in the Agriculture Department as possesses the necessary knowledge and experience of accounts and are otherwise considered fit for promotion to the vacancy. When recruitment is to be made by promotion to any other section of the cadre, the Director will draw up a list arranged in order of seniority of the required number of members of the Subordinate Agricultural Service holding posts in Sections A, C and D and thereof - as the case may be - as are eligible for promotion the vacancy and have been in that service for not less than fifteen years. The Director shall submit such list with his recommendation about each person included therein to the Secretary to Government, Agriculture Department.

(2) From amongst the persons mentioned in such list the Government will approve the required number for appointment to the Service after consulting, if necessary, an official committee appointed for the purpose.

(3) Recruitment will be made primarily on merit : seniority will count where merits are equal.

A perusal of Rule 16 reveals that the Director of the Department of Agriculture would prepare a list arranged in the order of seniority of "...members of the Subordinate Agricultural Service holding posts in Sections A, C and D and thereof ..." who have service not less than 15 years, for consideration for promotion.

It is the submission of the learned Counsel for the petitioner that the requirement of 15 years service was subsequently reduced to 10 years. This factual aspect is not disputed by the learned Counsel for respondent Nos. 3 and 4.

The only question to be determined by us is, whether the petitioner was eligible for consideration in the year 1987. In order to determine the eligibility of the petitioner, attention of this Court has been invited to Rule 27 of the 1937 Rules. Rule 27 is also being extracted hereunder:

- (1) The seniority of the member shall be determined in accordance with the date of the order of his substantive appointment to the Service:

Provided that the Government may at their discretion direct that a member whose period of probation is extended for failure to prove his fitness for confirmation be placed in the seniority list next below the last confirmed member.

(2) Subject to the proviso to the foregoing Sub-rule, the seniority of members, other than those mentioned in the Schedule to these rules, appointed substantively on the same date, will be in accordance with the order in which their appointments are notified, and will be determined as follows:

(a) a member recruited by promotion shall be senior to one recruited by direct appointment;

(b) the relative seniority among themselves of members recruited by promotion will be determined by Government on the basis of their relative positions in the substantive appointment held by them on the date of their appointment to the Service; and

(c) the relative seniority among themselves of members recruited by direct appointment will be determined by their ages.

(3) The seniority of members mentioned in the Schedule to these rules will be determined by Government at their direction with due regard to (i) their relative positions in the existing United Provinces Agricultural Service, and (ii) the officiating service if any rendered by them in post or posts included under these rules in the cadre of the Service, and (iii) in the case of the promoted officers, with due regard also to their relative positions in the subordinate service to which they belonged or the post held substantively by them before promotion.

A perusal of Rule 27 of 1937 Rules reveals that seniority would be determined on the basis of the date on which a member of the service was substantively appointed. It is, therefore, the submission of the learned Counsel for respondent Nos. 3 and 4 that while interpreting Rule 16, extracted hereinabove, the period of service reflected therein for purposes of eligibility is liable to be deemed to be such service which a member has acquired after his substantive appointment.

We have considered the rival submissions advanced by the learned Counsel for the parties. We are satisfied that on a conjoint reading of Rules 16 and 27, extracted hereinabove, the period of service, referred to in Rule 16 for purposes of eligibility for onward promotion, must be services rendered on a substantive basis. It is not disputed that the petitioner was regularised against the post of Statistical Inspector and Supervisor with effect from 24.4.1980. His services in the Agriculture Department became substantive only with effect from 24.4.1980. Even if it is accepted that 10 years experience was sufficient to render the petitioner eligible for promotion, he would acquire the said experience/service only in 1990. Thus viewed, we are satisfied that the petitioner was not eligible for promotion to the post of Statistical Officer in 1987. The Public Services Tribunal, Uttaranchal (Nainital Bench), was, therefore, fully justified in declaring the petitioner ineligible from 1987 and, therefore, rejecting his claim for promotion to the post of Statistical Officer with effect from 1987.

For the reasons recorded hereinabove, we find no merit in the instant Writ Petition and the same is accordingly dismissed.