Dismissed

Sanjay Shankar Pandey v. State of U.P. and Others

Allahabad HC6 Nov 2019WRIA/57362/2008

Case brief

AI extract

What is this about?

Petitioner, a member of District Judiciary, sought writ mandamus to include his name in the Higher Judicial Service promotion list based on his rank in a suitability test, arguing it should supersede seniority. The Court held that under Rule 5(a) and Rule 20, promotion requires seniority, rendering the suitability test rank irrelevant for the final list. Petition dismissed.

What the court decided

AI extract

Sanjay Shankar Pandey Vs State of U.P. and… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 29

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Case :- WRIT - A No. - 57362 of 2008

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Petitioner :- Sanjay Shankar Pandey Respondent :- State of U.P. and Others Counsel for Petitioner :- Prem Chandra, ,K.M. Asthana,K.M.Asthana,K.N. Tripathi Counsel for Respondent :- C.S.C.,Arvind Srivastava,Ashish Mishra.,Ashish Mishra,Manish Goyal

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Hon'ble Pankaj Mithal,J. Hon'ble Vivek Agarwal,J.

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Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

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Petitioner who is a member of District Judiciary has filed this petition seeking issuance of a writ of mandamus directing the respondents to amend the select list dated 11.08.2008 (Annexure8) so as to include the name of the petitioner on the basis of his merit at serial No.3 and then to issue consequential appointment/ promotion order as a member of U.P. Higher Judicial Service.

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Though petitioner has challenged the validity of the provisions as contained in the sub-Rules 3 and 5 of Rule 20 of the U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as U.P. H.J.S. Rule, 1975), however across the Bar, learned counsel for the petitioner submits that he would like to maintain his challenge only to prayer clause in regard to amendment of the select list dated 11.08.2008 and inclusion of the name of the petitioner and is giving up the challenge to the provisions as contained in sub-Rules 3 and 5 of Rule 20 of the U.P. H.J.S. Rule, 1975.

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Brief facts leading to present petition are that petitioner was selected in 1987 for Provincial Civil Service (Judicial) (Lower

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Division) and had joined his services as a sub ordinate Judicial Officer of the State of Uttar Pradesh, thereafter on 06.10.1990 was appointed as a Munsif at Fatehpur.

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On 05.10.2000, petitioner was promoted as Civil Judge (Sr. Division) and was posted as Additional Chief Judicial Magistrate at District Jaunpur. On 06.06.2006, petitioner was promoted to the Higher Judicial Service as per the provisions contained in Rule 22(3) of U.P. H.J.S. Rule, 1975 as a stop gap arrangement and was posted as Additional District Judge (Fast Track Court) at Faizabad.

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In terms of the judgment of Hon'ble Supreme Court in case of All India Judges' Association and others Vs. Union of India and others as reported in (2002) 4 SCC 247 Rule-5 dealing with sources of recruitment was amended vide notification No.54/II-407-36(1)/2005 dated 9th January, 2007 (6th amendment) Rules, 2006 w.e.f. 21.03.2002.

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Thus petitioner's contention is that his case is governed by Rule-5(a) read with Rule-20 of the U.P. H.J.S. Rule, 1975. Petitioner's contention is that having found place in the merit list consequent to the suitability test for promotion under Rule 5(a) read with Rule 20 of U.P. H.J.S. Rule, 1975 for which Admit Card was issued to him vide Annexure-6 of the petition. Petitioner should have been given regular promotion in the cadre of H.J.S. according to his merit in the qualifying examination which was held to adjudge the suitability of the candidates. Thus petitioner's contention is that having found place in the merit list at a higher rank petitioner was required to be placed in order of promotion dated 11th August, 2008 without having regard to his seniority in the cadre of Civil Judge (Sr. Division).

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Learned counsel appearing for the respondent No.2, on the other hand, submits that there is a fine distinction between the provisions contained in Rule-5(a) and Rule-5(b). It is further submitted that Rule-5(a) and Rule-5(b) needs to be read with Rule-20 of the U.P. H.J.S. Rule, 1975.

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Rule-5(a) and Rule-5(b) reads as under:-

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Rule-5(a).

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"(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test;”

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Rule 5(b).

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"(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;"

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Rule-20 deals with promotion of members of the 'Nyayik Sewa' as referred to in Rule-5(a) whereas Rule-21 deals with promotion of such members of the 'Nyayik Sewa' as referred to in Rule-5(b). Petitioner despite being a candidate appearing in a suitability test for promotion held amongst the Civil Judges (Sr. Division) as contained in Rule-5(a) is seeking relief under the scheme of promotion provided under Rule-5(b) overlooking the fact that field of operation on Rule-5(a) and 5(b) is entirely different and they are respectively governed by further qualifications provided under Rule-20 and 21 respectively.

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After hearing learned counsel for the parties and going through the record, it is evident that petitioner who was a member of U.P. Sub-ordinate Judicial Service (Sr. Division) had appeared for suitability test for promotion under Rule-5(a) read with Rule-20 of U.P. H.J.S. Rule, 1975 as is evident from the admit card contained in Annexure-6. Therefore, it is apparent that in a case of promotion covered by the principle of merit-

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cum-seniority, passing a suitability test is only for the purpose of adjudging the suitability fitness and rank in a suitability test has nothing to do with merit of the candidate which is subject matter of promotions to be made strictly on the basis of merit through limited competitive examinations as is covered under the provisions of Rule-5(b). Rule-20 is unambiguous inasmuch as subRule-5 of Rule-20 provides for preparation of a final selection for promotion in order of seniority of candidates who are considered fit for promotion. It further provides that the list shall remain operative only till the next recruitment. For ready reference subRule-5 of Rule-20 reads as under:-

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sub-Rule-(5) .

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"The Court shall examine the recommendations of the Selection Committee and make a final selection for promotion and prepare a list in order of seniority of the candidates who are considered fit for promotion and forward the same to the Governor. The list shall remain operative only till the next recruitment."

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Thus, it is apparent that the suitability test was conducted only to consider the fitness of a candidate and any rank in the merit position of such suitability test has no bearing on the placement of a candidate in the final selection list overlooking the seniority of a candidate but, on the contrary, a plain reading of sub-Rule-5 of Rule-20 makes it abundantly clear that merit is subject to seniority and list is to be prepared in order of seniority, therefore, petitioner's rank in the suitability test has no bearing on the operation of the Rule-5(a) read with Rule-20 and therefore petitioner being not sufficiently senior so to find place in the promotion list of suitable candidates is not entitled to stake a claim to the post of H.J.S. in preference to his seniors who too had qualified the suitability test. Even otherwise, life of

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the list being restricted till the next recruitment, the list which was prepared is no more operative.

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Thus, both on merit and also by virtue of the technicality of list prepared under sub-Rule 5 of Rule-20 having been rendered redundant, petitioner is not entitled to any relief. Therefore petition fails and is dismissed.

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Order Date :- 6.11.2019 Ashutosh

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Sanjay Shankar Pandey v. State of U.P. and Others

Case brief

What is this about?

What the court decided

Sanjay Shankar Pandey v. State of U.P. and Others

Case brief

What is this about?

What the court decided

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Statutes considered

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