Allowed

Ashish Awasthi and Another v. State of U.P. and 3 Others

Allahabad HC3 Jul 2018WRIA/8148/2018

Case brief

AI extract

What is this about?

The High Court quashed a circular directing a consolidated seniority list for head office and regional office employees. It held that the Rules of 1983 mandate separate lists for distinct cadres and that the later Rules of 1991 do not merge these cadres or invalidate the separate statutory lists.

What did the court decide?

The circular dated 16.2.2018 was quashed, and respondents were directed to continue maintaining separate seniority lists for head office and regional office employees.

Ashish Awasthi and Another Vs State of… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 58

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Case :- WRIT - A No. - 8148 of 2018

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Petitioner :- Ashish Awasthi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashwani Kumar Mishra Counsel for Respondent :- C.S.C.

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Hon'ble Ashwani Kumar Mishra,J.

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1. This petition has been filed seeking following reliefs:-

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“(i). Issue a writ, order or direction in the nature of certiorari after calling record of the case and to quash the impugned order dated 16.2.2018 passed by Joint Commissioner/Joint Director, Directorate of Handloom and Textile U.P., Kanpur (which is contained at Annexure no.1 to this writ petition).

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(ii). Issue a writ, order of direction in the nature of mandamus commanding the respondent no.3 to consider the claim of petitioners for being promoted to the post of Senior Assistant in the Head Office or Directorate of Handloom and Textile U.P. in terms of final seniority list dated 7.5.2010 of Junior Assistants (which is contained at Annexure no.6 to this writ petition) in accordance with the provisions contained under U.P. Industries Department Directorate of Handloom and Textiles Ministerial Rules, 1983.”

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A circular issued by Joint Commissioner/Officer-in-Charge, Handloom and Textiles, dated 16.2.2018 is challenged in this petition insofar as it directs a consolidated seniority list to be drawn in respect of employees posted both in the head office and in the regional office (specified as subordinate office in the Rules). Contention is that in view of the statutory scheme operating such consolidated list of seniority cannot be directed to be drawn.

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At the very outset, it would be appropriate to notice that the State Government in exercise of its power under proviso to Article 309 has framed rules known as 'The U.P. Industries Department Directorate of Handloom of Textiles, Ministerial Service Rules, 1983' (hereinafter referred to as 'Rules of 1983'), which have been notified on 16.1.1984. Rule 3 contains definition. Sub-rule (g), (i) and (l) of rule 3 are relevant and are extracted below:-

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“(g). “Head Office” means the office of the Director of Handloom and Textiles, Uttar Pradesh.

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(i). “Regional Officer” means the Assistant Director of Industries (Handloom)/Assistant Director of Industries (Sericulture)/Deputy Director of Industries (Sericulture) posted at the regional level.

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(l). “Subordinate Office” means an office subordinate to the Director of Handloom and Textiles, Uttar Pradesh.”

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Rules 21(1) of the Rules is also relevant and is reproduced hereinafter:-

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“21(1). Separate seniority lists for each category of posts shall be maintained for each region and the Head Office by the Regional Officer and the Director respectively.”

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Rule 4(i) provides for strength of the service. Each category of posts shall be determined by the Government from time to time. By virtue of sub-rule (ii) of rule 4, the strength of service has been specified and included in Appendix. Appendix 'A' and 'B' appended to the rules would clearly go to show that posts have been sanctioned cadre wise and that the posts sanctioned for head office and for regional/subordinate office are clearly segregated and specified separately in the Rules itself. The Rules of 1983 have not been amended and continues to remain unaltered. It is further not in issue that seniority list has been drawn in the past separately both for the employees of head office and regional/subordinate office. Such list drawn from time to time have attained finality and the respective seniority has been determined as per it. The seniority list in that regard has been brought on record and is otherwise not disputed by the respondents in their counter affidavit. The direction under challenge is sought to be justified by the respondents by contending that the provisions contained under rule 21(1) of the Rules of 1983 would cease to have any relevance after the U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules of 1991') have come into existence inasmuch as Rules of 1983, particularly rule 21(1) of the rules thereof, would cease to have any applicability once the Rules of 1991 have come into existence. It is contended that the State Government has issued certain govt. orders including govt. order dated 22.12.2011, as per which a combined seniority

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list is required to be drawn in respect of employees of the department concerned, and therefore, the circular issued on 16.2.2018 is as per law.

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In para 7 of the counter affidavit a specific stand is taken that in view of the applicability of Rules of 1991, seniority would not be required to be drawn separately for Head Office and regional level/subordinate level, and that a combined seniority of head office and regional office would have to be drawn. Respondents, however, do not dispute the fact that the Rules of 1983 continues to exist and have not been amended or modified so as to do away with the provisions of drawing separate seniority for head office and regional office. Respondents have also contended that drawing of separate seniority would result in discrimination being caused between employees of head office and regional office.

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I have heard learned counsel for the parties and perused the materials brought on record.

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The short issue that requires consideration in the present case is as to whether the requirement of drawing separate seniority for head office and regional office, as per the Rules of 1983, is obliterated on account of introduction of Rules of 1991?

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Relevant provisions contained in Rules of 1983 have already been extracted above. The statutory scheme as per Rules of 1983 is absolutely clear inasmuch as separate seniority is contemplated to be drawn both in respect of employees posted at head office and those posted in the regional/subordinate office. According to respondents, this feature as emerges from Rules of 1983, however, would no longer be applicable once Rules of 1991 have come into existence.

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The Rules of 1991 clearly provide that it shall apply to all government servants in respect of whose recruitment and conditions of service, rules have been made by the Governor under the proviso to Article 309 of the Constitution. Rules of 1991 clearly provides for having an overriding effect even in

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cases where separate service rules are in existence to deal with employees of the department concerned. Part II of the Rules of 1991 relates to determination of seniority. Rule 5 provides for seniority to be determined with respect to appointments made by direct recruitment while rule 6 regulates determination of seniority where the appointments are made by promotion only. Rule 7 deals with seniority where appointments by promotion are made from several feeding cadre. Rule 8 regulates determination of seniority where appointments are made both by direct recruitment and promotion. Rules 4(b) of the Rules of 1991 defines 'cadre' in following terms:-

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“4(b). "Cadre" means the strength of the service, or part of the service sanctioned as a separate unit;”

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The determination of seniority as per the Rules of 1991 would have to be made with reference to a particular cadre whether recruitment is by direct recruitment, or by promotion or both by direct recruitment and promotion. Part III of the Rules of 1991 contemplates preparation of seniority list. Rules of 1991 nowhere provides that cadres drawn separately under the relevant service rules would stand modified or that the employees of two separate cadres would be automatically clubbed together once the Rules of 1991 comes into play. The Rules of 1983 as well as Rules of 1991 would operate in distinct fields and the contention of the respondents that Rules of 1983, insofar as it contemplates drawing of separate seniority in respect of employees of head office and regional/subordinate office would stand obliterated by virtue of Rules of 1991, is thus not liable to be accepted. The cadre has been specified under Rules of 1983. As per the Rules of 1983 separate cadres exist for the head office cadre and regional/subordinate office. The principle to govern seniority in respect of employees of head office and regional/subordinate office cadre no doubt would be such as is provided under Rules of 1991, but the distinction between two cadre would not cease to exist only because Rules of 1991 have come into existence. The order dated 16.2.2018 proceeds on the premise that once the Rules of 1991 have come into existence the separate cadres drawn at the level of head office and regional/subordinate

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office under the Rules of 1983 would cease to exist. This interpretation is found to be inconsistent with the statutory scheme.

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The separate seniority list drawn, consistently, in respect of employees posted at head office level and regional/subordinate office level has otherwise remained unchallenged a long period. Such longstanding seniority otherwise cannot be disturbed in the matter as is sought to be done by the order impugned. This is particularly so as the Rules of 1983 otherwise not been amended. Law is otherwise settled that in the hierarchy of law a statutory rule framed under proviso to Article 309 would stand on a higher footing than any administrative instruction/ government order and to the extent of inconsistency the administrative order would have to give way to the rules.

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In such view of the matter, I have no hesitation in holding that it would be impermissible for the respondents to do away with requirement of drawing separate seniority in respect of separate cadre i.e. head office and regional office/subordinate office. The order/circular dated 16.2.2018, consequently, cannot be sustained to that extent and is accordingly quashed. Respondents shall continue to maintain separate seniority list in respect of employees posted at head office and regional office/subordinate office in the current statutory scheme. Petitioners claim for promotion shall be considered accordinngly in accordance with law.

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Writ petition is, accordingly, allowed. There shall however be no order as to costs.

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Order Date :- 3.7.2018 Ashok Kr.

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(Ashwani Kumar Mishra, J.)

Ashish Awasthi and Another v. State of U.P. and 3 Others

Case brief

What is this about?

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Ashish Awasthi and Another v. State of U.P. and 3 Others

Case brief

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