Writ Petition No. 368 of 2008 · Uttarakhand High Court · 2012

The petitioner, being aggrieved by the appointment of respondent no.2 on a Class III post, has filed the present writ petition. 3 Heard Sri Alok Mehra, the learned counsel for the petitioner, Sri D.S. Patni, the learned counsel for the District Judge, Champawat and Sri Shobhit Saharia, the learned counsel for the private respondent no.2. According to the learned counsel for the petitioner, the exercise to fill up the post was by way of promotion as contemplated under sub-rule (2) of Rule 20 of The Uttarakhand Subordinate Civil Courts Ministerial Establishment Rules, 2007 (hereinafter referred to as the Rules of 2007). According to the learned counsel for the petitioner, the promotion from a Class IV to a Class III post was required to be made according to seniority subject to efficiency. In the alternative, the learned counsel submitted that if these Rules of 2007 are not applicable, The Uttaranchal Government Servants (Criterion for Recruitment by Promotion) Rules, 2004 (hereinafter referred to as the Rules of 2004), would be applicable and, Rule 4 thereof provides that for a non gazetted post the basis for promotion would be seniority subject to the rejection of the unfit and consequently the learned counsel submitted that seniority is the criteria which was required to be adhered, which in the present case was not considered by the Selection Committee and, that the selection was made purely on the basis of merit. 4 In reply to the contention of the learned counsel for the petitioner, Sri D.S. Patni, the learned counsel for the District Judge Champawat submitted that a Class III post is a selection post as provided under Rule 3(a) of the Rules of 2007 and consequently selection is based on merit with due regard to seniority to be given as provided under sub-rule (3) of the Rule 20 of the Rules. The learned counsel submitted that in view of the provision of sub-rule (3) of Rule 20 read with the note appended after sub-rule (6), a suitability test was conducted in which respondent no.2 obtained higher marks than the petitioner. The Selection Committee also considered the service record and thereafter recommended the name of respondent no.2. Sri Shobhit Saharia, the learned counsel for the private respondent no.2 had a different view on the selection process and submitted that the exercise to fill up the Class III post was done as per the condition and procedure prescribed under sub- rule (10) of Rule 20 of the Rules of 2007. According to Sri Shobhit Saharia, the procedure is selection, based on merit, and the Government Notification dated 31st August, 1982 was also taken into consideration, which contemplates selection has to be based on merit alone. 5 In the light of the rival stand taken by the parties, it would be appropriate to analyze certain provisions of the Rules of 2007, Rules of 2004 and the Government Notification dated 31st August,

1982. The source of recruitment has been specified in Rule 3 of the Rules of 2007, which is extracted hereunder:- (cid:147)3. Cadre of the service : The ministerial service shall consist of the following classes and categories of officials employed in each judgeship and Family Courts in Uttarakhand :- Name of the post SI. No. (a) Copyist/Junior Clerk/Assistant Clerk, Accounts Assistant Librarian, Stationary Clerk, II, Amin Grade Record Assistant Keeper, Assistant Nazir (b) Suits Clerk/Execution Clerks, Ahalmads, Dy. Nazir, Accounts Sessions Clerk, Appeals Clerk, Cashier, Clerk, Clerk, Misc. Munsarim/ Readers of Civil (SD) and Judge Civil Judge (JD)/J.M., Librarian, Grade Record Keeper. (c) Munsarim/Readers of the Courts of District Amin I/Deputy Civil Courts Source Recruitment By direct recruitment or by selection from amongst the regular Group (cid:145)D(cid:146) employees fulfilling conditions as /Government orders applicable not beyond the quota fixed such Government Orders By promotion amongst the category (a) having three years experience Pay Scale Rs. 3050- 4590 or pay scale refixed Government from time to Rs.4000- 6000 or pay scale refixed Government from time to Rs.4500- 7000 or pay scale refixed By promotion amongst the category (b) having three years Judge/Addl. District Judge/C.J.M/Addl. Central C.J.M., Record Nazir, Keeper, Head Copyist 2nd Clerk (d) Sadar Munsarim (e) Senior Administrative Officer (f) I of Civil Stenographer Grade courts Judge (J.D.)/Judicial Magistrate/C.J.M/ Additional C.J.M./Civil Judge (S.D.)/Additional Civil Judge (S.D.) (g) Personal Assistants to the courts of Additional District & Sessions Judges (h) Personal Assistants to the courts of District & Sessions Judges 6 experience Government from time to promotion By selection amongst the category (c) who has put aleast ten years service in all. promotion By selection amongst categories (c) and (d) who has put aleast ten years service By direct recruitment By promotion amongst the category (f) having five years experience By promotion amongst the category (g) Rs.5500- 9000 or pay scale refixed Government from time to Rs.6500- 10,500 refixed Government from time to Rs.4000- 6000 or pay scale refixed Government from time to Rs.5500- 9000 or pay scale refixed Government from time to Rs.6500- 10500 or pay scale refixed Government from time to The categories mentioned at sub-clause (a) to (e) will form one cadre and categories (f) to (h) will be another cadre.(cid:148) A perusal of Rule 3(a) indicates that there will be a direct recruitment by selection from amongst 7 regular Group (cid:145)D(cid:146) employees for the post of Copyist/Junior Clerk/Assistant Accounts Clerk, Assistant Librarian, Stationary Clerk, Amin Grade II, Assistant Record Keeper and Assistant Nazir. Rule 3(b) stipulates that the post of Suits Clerk/Execution Clerks, Ahalmads, Dy. Nazir, etc. would be filled up by way of promotion from such category as mentioned in Rule 3(a), namely, that posts would filled Copyists/Junior Clerk, Assistant Accounts Clerk, etc., as specified in Rule 3(a). In the light of the aforesaid, the advertisement clearly indicated appointment on Group (cid:145)C(cid:146) post from eligible candidates from Group (cid:145)D(cid:146), i.e., for the post, specified in Rule 3(a) of the Rules of 2007. In the light of the aforesaid, the Court finds that the recruitment of a Class III post is by way of selection from amongst regular Group (cid:145)D(cid:146) employees and it is not a simpliciter case of promotion, but promotion by way of selection on merit. Rule 20 provides the procedure for promotion. For facility, Rule 20 of the Rules of 2007 is extracted hereunder:- (cid:147)20. Promotion: (1) The higher post in a judgeship or Family Court shall be reserved for clerks in that 8 judgeship of Family Court and promotion to higher posts shall be made from amongst them. (2) Except in cases of Amins, promotion shall be made according to seniority subject to efficiency. (3) Posts other than those mentioned in sub-rule (2) above, shall be treated as selection posts, promotion to which shall be based on merit with due-regard to seniority, with a suitability test as prescribed by the District Judge or Principal Judge, Family Court, as the case may be. (4) The promotion from the lowest grade to the next higher grade shall be made if the persons have sufficient knowledge of Circular letters, General Rules (Civil and Criminal), Financial Hand Book after taking a suitability test by the District Judge and the Principal Judge, Family Court as prescribed by him. (5) The posts of Sadar Munsarim and Senior Administrative Officers are of promotional and of selection posts. The promotion to these posts will be made from amongst the persons who have sufficient knowledge of working in all departments of Judgeship, particularly, the Nazarat and Accounts. While making the promotion to the posts of Sadar Munsarim and the Senior Administrative Officer, the District Judge will conduct a suitability test as prescribed by him of the persons of working in the next lowest grade to these posts and then make promotion to these posts on the basis of merit-cum-seniority. The cases of Senior Personal Assistants shall also be considered by the District Judge for the post of Senior Administrative Officer. (6) The Chief Justice, if he deems fit, may make appointment on the posts of Sadar Munsarim and the 9 Senior Administrative Officer of the member of any judgeship provided the vacancy exists in such judgeship. Note-In passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared to his seniors. (7) In Courts subordinate to the High Court, promotions to the Amins from the second to the first grade shall, as a rule, be made within the local jurisdiction of a District Judge considering the ground of superiority of general qualifications, irrespective of length of service. (8) Promotions or appointments to the posts of Amins in subordinate Civil Courts shall ordinarily be confined to persons regarding whom the District Judge is satisfied that they have a sufficient knowledge of- (i) Hindi and English, (ii) Arithmetic (iii) Measurement, (iv) Elementary land surveying and mapping, (v) Code of Civil Procedure, (vi) Rules in General (Civil) relating to the work and duties of the Amins : Provided in exceptional circumstances the District Judge may exempt an official from such qualifications if he is satisfied that the official concerned is otherwise fit to hold the appointment. (9) An official once promoted to the post of Amin shall not, for purposes of promotion to other posts in general office be entitled to claim seniority by reasons of 10 such promotion over other clerks who were senior to him before his promotion as Amin. (10) The appointment by way of promotion from the eligible candidates of group (cid:145)D(cid:146) within the prescribed quota shall be made by the appointing authority in accordance with conditions and procedure prescribed by rules and Government orders issued from time to time in the lowest pay scale of Group (cid:145)C(cid:146).(cid:148) Rule 20(2) provides that promotion shall be made according to seniority subject to efficiency. Rule 20(3) provides that post other than those mentioned in sub-rule (2) would be treated as a selection post, the promotion to which shall be based of merit with due regard to seniority, with a suitability test as prescribed by the District Judge, i.e. to say that for a selection post, the promotion would be based on merit and due regard to seniority would also be given. A suitability test would be held to judge the merit of the candidate. The note appended after sub-rule (6) indicates how to judge the efficiency of a candidate, which provides that in passing over a person for inefficiency as well as promotion for a selection post, due regard/weight would be given to his previous record of service and that seniority would be disregarded only when a junior official, who is promoted, is of outstanding merit as compared to his seniors. Consequently, previous record of service would be considered while passing over a person for his inefficiency and seniority would be disregarded where a junior 11 official is of outstanding merit compared to his seniors. Otherwise, if all things are equal on merits, then seniority would be considered. Sub-rule (10) of Rule 20 provides appointment by way of promotion from eligible candidates of Group (cid:145)D(cid:146) within the prescribed quota, which would be made in accordance with the conditions and procedures prescribed by rules and Government Orders issued from time to time in the lowest pay scale of Group (cid:145)C(cid:146). In the light of the aforesaid, the provisions of Rule 20(2), 20(3) and 20(10) comes into play in different areas. Rule 20(2) comes into play when only promotion is required to be made accordance with seniority subject to inefficiency. Rule 20(2) would apply in a case of a post mentioned for an employee in Rule 3(b), which provides for promotion from the persons mentioned in Rule 3(a). In the present case, the advertisement was for appointment on the post mentioned in Rule 3(a) on which the respondent no.2 was eventually appointed. Therefore, Rule 20(2) of the Rules of 2007 is not applicable in the instant case. The contention of the petitioner in this regard is misconceived. The contention of Sri D.S. Patni is also not correct. Rule 20(3) is not applicable in the instant case inasmuch as the Court is of the opinion that sub-rule (10) of Rule 20 is applicable in the instant 12 case. The post in question is a selection post, which is required to be filled up by merit, as per the conditions and procedures prescribed by Rules and Government Orders as indicated in sub-rule (10) of Rule 20. In the instant case, as per the advertisement, the appointments by way of promotion from eligible candidates of Group (cid:145)D(cid:146) was to be done within the prescribed quota. The academic qualification was lowered. For 3 posts, the candidate was required to have high school certificate and, for one post, the candidate was required to have intermediate certificate, whereas for a clerical post, as specified in Rule 6, the academic qualification is a Graduate degree. The advertisement makes it apparently clear that Rule 20(10) was to be applied. The conditions for holding the tests and marks to be given was as per the Government Notification dated 31st August, 1982. The procedure adopted was as per the Government Order dated 31st August, 1982. This Government Order also indicates appointment of the candidates would be made on merits. Consequently, due regard to seniority, as prescribed under Rule 20(3) was not required to be adhered in the instant case. In the light of the aforesaid, the Court finds from a perusal of the results declared by the Selection Committee is, that the petitioner Naresh Chandra obtained 58.5% marks in comparison to 13 respondent no.2 who obtained 70.5% marks. The details of the marks obtained in specified categories is extracted hereunder:- Result (Intermediate Quota) Name G.K./50 Descriptive Roll No. /35

26.5 12 Compute /05 Service Record /10 Total/ 100 05

1.5 09 08

70.5

58.5

04. Brij Pal

11. Naresh Chandra 30 37 From the aforesaid, it indicates that the Selection Committee considered performance of the candidates in computer and also considered the service record and found that the respondent no.2 had obtained better marks than the petitioner and accordingly recommended the name of respondent no.2. The learned counsel the petitioner submitted that the advertisement indicated that a minimum of 55 marks was required to qualify in the written examination and, once a candidate qualifies the minimum eligibility criteria in the written examination, the consideration thereafter switches from merit to seniority. The learned counsel submitted that having passed the written examination, the authority was then required to consider the seniority of the petitioner vis-(cid:224)-vis the respondent no.2, which has not been considered. In support of his submission, the learned counsel 14 placed reliance upon a decision of the Supreme Court in B.V. Sivaiah & Ors. vs. K. Addanki Babu & Ors., (1998) 6 Supreme Court Cases 720, which was reiterated again by the Supreme Court in Haryana State Warehousing Corporation & Ors. vs. Jagat Ram & Anr., (2011) 3 Supreme Court Cases 422, on the issue of merit-cum- seniority or seniority-cum-merit. In Sivaiah(cid:146)s case (supra), the Supreme Court has elucidated the principle of merit-cum-seniority and seniority-cum-merit. For facility, paragraph 9 and 10 of the said judgment are extracted hereunder:- (cid:147)9. The principle of (cid:147)merit-cum-seniority(cid:148) lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that (cid:147)selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority(cid:148) Mathew, J. in Union of India v. Mohan Lal Capoor has said: (SCC p. 856, para 37) (cid:147) For inclusion in the list, merit and suitability in all respects should be the governing consideration and that the seniority should play only a secondary role. It is only when merit and suitability are roughly 15 equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.(cid:148) Similarly, Beg, J. (as the learned Chief Justice then was) has said: (SCC p. 851, para 22) (cid:147)22. Thus, we think that the correct view, in conformity with the plain meaning of words used in the relevant Rules, (cid:145)entrance(cid:146) or (cid:145)inclusion(cid:146) test for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor.(cid:148)

10. On the other hand, as between the two principles of seniority and merit, the criterion of (cid:147)seniority-cum-merit(cid:148) lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of (cid:147)seniority subject to the fitness of the candidate to discharge the duties of 16 the post from among persons eligible for promotion(cid:148). It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.(cid:148) The crux of the elucidation made by the Supreme Court is that when merit and suitability are roughly equal then seniority becomes the determining factor. In the instant case, this principle is not applicable. The Court could have considered the submission of the learned counsel for the petitioner if sub-rule (3) of Rule 20 was applicable totality, which provides promotion shall be based on merit with due regard to seniority, but as the Court has held that the conditions and procedures prescribed by Rules and Government Orders under Rule 20(10) are applicable, which only provides that meritorious candidate would be taken into consideration. There was a clear departure for non-consideration of seniority. Consequently, the judgments relied upon by the learned counsel for the petitioner are not applicable in the instant case. In the end, a feeble submission was also made by the learned counsel for the petitioner, namely, that the Rules of 2004 will prevail over the Rules of 2007 and the Government Order of 1982 by virtue 17 of the overriding effect provided in Rule 2 of the Rules of 2004. For facility, Rule 2 of the Rules of 2004 is extracted hereunder:- (cid:147)2. Overriding effect-These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force.(cid:148) A perusal of aforesaid Rule of Rules of 2004 indicates these Rules will have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force. Rule 4 of these Rules provides that promotion will be made on the basis of seniority subject to the rejection of the unfit. In the light of this overriding effect, the learned counsel for the petitioner stressed that the Rules the Government Order relied by respondents are inapplicable and the Rules of 2004 will have a overriding effect and that promotion would be required to be based on seniority subject to the rejection of unfit. The submission of the learned counsel for the petitioner is bereft of merit. The Rules of 2004 are general rules and are not special rules. Rule 2 of 18 the Rules of 2004 clearly indicates that the Rules of 2004 will prevail over any other service Rules which for the time being is in force i.e. to say Service Rules existing as on the date of the coming of the Rules of 2004 i.e. 15th June, 2004. In the instant case, specific Rules for the Subordinate Civil Courts were framed specifically in the year 2007 much after the Rules of 2004. These are special Rules for a particular establishment, which will prevail over the Rules of 2004. The preamble of the Rules of 2007 clarifies further, namely, (cid:147)In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating recruitment and conditions of service of persons appointed to the Ministerial establishment of the Civil Courts and Family Courts in the State of Uttarakhand, Subordinate to the High Court.(cid:148) The Preamble of the Rules of 2007 provides that in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating the recruitment and conditions of service of persons appointed to the Ministerial establishment of the Civil Courts and Family Courts in the State of Uttarakhand. It is apparently clear that the Rules of 2007 supersedes the Rules of 2004 in the given subject. 19 The Government Order of 1982 is clear and specific namely for appointment of candidates from Group (cid:145)C(cid:146) to Group (cid:145)D(cid:146) within the prescribed quota. These Rules would be applicable so far as the situation contemplated under Rule 20(10) is concerned, as these Government Orders is only for a specific purpose and is not for a general purpose. In the light of the aforesaid, the Court does not find any merit in the writ petition. The writ petition, being devoid of merit, is dismissed. In the circumstances of the case, parties shall bear their own cost. Sri D.S. Patni, Advocate is directed to return the original record to the District Judge concerned. The Registrar General of the High Court is directed to circulate a copy of this judgment to all the District Judges of Uttarakhand. 30th July, 2012 Rajni (Tarun Agarwala, J.)