Partly allowed

Rajeev Kumar and 22 Others v. State of U.P. and 2 Others

Allahabad HC5 Nov 2024WRIA/5823/2024

Case brief

AI extract

What is this about?

In a writ petition by lecturers seeking a combined seniority list and promotion, the Allahabad High Court directed the Public Service Commission to submit a combined merit/seniority list of candidates from a single 2014 advertisement. The Court issued a mandamus to the Commission and SCERT to prepare and publish the final seniority list within specific timelines, leaving principles of determinatio

What did the court decide?

Mandamus issued to the Public Service Commission to provide a combined seniority/merit list to the Director, SCERT. Mandamus issued to the Director, SCERT to publish the list, afford objections, and i

Rajeev Kumar and 22 Others vs State of… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:172926 Court No. - 5 Reserved

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Case :- WRIT - A No. - 5823 of 2024

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Petitioner :- Rajeev Kumar And 22 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rakesh Kumar Mishra,Udayan Nandan Counsel for Respondent :- Bijendra Kumar Singh, C.S.C., Chandrakesh Rai, Siddharth Khare, Sr. Advocate, Vijai Kumar Rai

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Connected with

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Case :- WRIT - A No. - 7257 of 2024

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Petitioner :- Akhilesh Kumar Singh And 58 Others Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Jai Prakash Singh,Prabhakar Awasthi, Ved Prakash Mishra

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Counsel for Respondent :- B.K.Singh Raghuvanshi, C.S.C., Chandrakesh Rai, M.N. Singh, Siddharth Khare, Vijai Kumar Rai

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Hon'ble J.J. Munir,J.

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1. This judgment will dispose of the present writ petition and connected Writ-A No.7257 of 2024. Since common questions of fact and law are involved in both the petitions, the facts are being noticed from the leading writ petition and both petitions have been heard on the basis of affidavits put in by parties in this petition.

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2. The petitioners are all Lecturers belonging to the Uttar Pradesh Education (Lecturer's Cadre) Service. They are lecturers in varying subjects and by the terms of their conditions of service, are obliged to teach their subject in the District Institute of Education and Training (for short, 'the DIET') or the State Council of Educational Research and Training (for short, 'the SCERT'). The petitioners pray that a mandamus be issued, ordering the Director, SCERT to issue a combined order as per Rule 16(2) of the Uttar Pradesh Teachers Education (Lecturers Cadre) Service Rules, 2010, as amended in the year 2013 before issuing a final seniority list of lecturers, working in different DIETs and units of the SCERT. A direction is further sought to the Director last mentioned to draw

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up a seniority list of lecturers in accordance with Rule 5 of the Uttar Pradesh Government Servants Seniority Rules, 1991 and consider the petitioners' case for promotion to the posts of Senior Lecturers under the 50% quota reserved for direct recruits on the post of lecturers.

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3. The facts briefly said are that an advertisement for 1280 posts of lecturers in 24 subjects for appointment in the SCERT, its units and the DIETs across the State was issued by the Uttar Pradesh State Public Service Commission (for short, 'the Public Service Commission') on the requisition of the Director, SCERT, bearing Advertisement No.5/2013-14 dated 07.02.2014. In response to the advertisement last mentioned, all the petitioners applied for different posts of lecturers, according to their respective subjects of study. The petitioners faced the process of selection involving a written examination and interview by the Public Service Commission. They were declared selected. On the foot of the recommendation made by the Public Service Commission, the Director, SCERT issued letters of appointment to the petitioners on varying dates, posting them to the DIETs across the State or the SCERT or its units, depending on the vacancy in the relevant subject. The petitioners joined in accordance with their respective letters of appointment and are serving in their positions. The conditions of service of the petitioners are governed by the Rules made by the Governor in the exercise of powers under the proviso to Article 309 of the Constitution. This has been done through a notification dated 26^th May, 2010 and these rules are known as the Uttar Pradesh Teachers Education (Lecturers Cadre) Service Rules, 2010 (for short, 'the Rules of 2010'). The aforesaid Rules were amended by a notification dated 22.08.2013, known as the Uttar Pradesh Teachers Education

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(Lecturers Cadre) Service (First Amendment) Rules, 2013. These Rules lay down that appointment to the post of a lecturer in the service is to be made by way of direct recruitment, with the selection to be done through the Public Service Commission. Rule 16(2) of the Rules of 2010 stipulates that if more than one order of appointment is issued in respect of any one selection, then the Appointing Authority shall issue a combined order, mentioning the names of persons in order of seniority, as determined in the selection.

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4. Rule 19 of the Rules of 2010 says that the seniority of persons substantively appointed shall be determined in accordance with the procedure prescribed under the Uttar Pradesh Government Servants Seniority Rules, 1991 (for short, 'the Rules of 1991'). Rule 5 of the Rules of 1991, to which reference would be made in greater detail later, mandates that where according to the service rules, appointments have to be made by direct recruitment, the inter se seniority of persons appointed on the result of any one selection, shall be the same as shown in the merit list prepared by the Commission or the Committee, whoever be the selecting body. The petitioners say that they were appointed pursuant to a selection held by the Commission based on the advertisement dated 07.02.2014 through a single process of selection, but due to administrative reasons, they were issued letters of appointment on different dates. The letters of appointment were issued much after completion of the process of selection by the Commission on varying dates, for reasons beyond the petitioners' control. The petitioners joined service according to the letters of appointment, whenever issued.

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5. On 15.06.2022, a provisional seniority list of lecturers was issued by the Director, SCERT, which includes the petitioners'

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names. Objections were invited to the said list upon its publication by those aggrieved with the seniority assigned to them provisionally. The petitioners say that the provisional seniority list was drawn up illegally according to the date of issue of the letters of appointment to the petitioners, without considering the provisions of Rule 16(2) of the Rules of 2010 and Rule 5 of the Rules of 1991. It is said that the provisional seniority list was issued without compliance with Rule 16(2) of the Rules of 2010, inasmuch as no order has been passed by the Director, SCERT, issuing a combined order, mentioning the names of persons in order of their seniority determined according to their merit in the selection certified by the Commission. It is then said that it is incumbent upon the Appointing Authority to issue a combined order of appointment assigning seniority to the petitioners and similarly circumstanced appointees selected through the same selection based on the inter se merit as certified by the Public Service Commission.

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6. It is also said that without passing an order under Rule 16(2) of the Rules of 2010, the Appointing Authority has issued a provisional seniority list, which proposes for the petitioners a seniority with effect from the date of issue of the letters of appointment to the various petitioners. It is urged that the action of the Appointing Authority is in violation of Rule 5 of the Rules of 1991 read with Rule 19 of the Rules of 2010, inasmuch as a conjoint reading of the said Rules would indicate that where appointments are made by direct recruitment alone, the inter se seniority of persons appointed on the result of one selection shall be based on the inter se merit certified by the Commission or the Committee. Here, it is the Commission. It is further said that the petitioners along with the other lecturers were all

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appointed pursuant to the advertisement dated 07.02.2014 and, therefore, all persons, including the petitioners, must be regarded as selected through 'one selection process' within the meaning of Rule 5 of the Rules of 1991. It is pleaded that this anomaly could have been avoided if before issue of the provisional seniority list, the Appointing Authority had issued a combined order of appointment, mentioning the names of persons in order of seniority as per Rule 16(2) of the Rules of 2010.

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7. The next limb of the petitioners' case is that against the provisional seniority list dated 15.06.2022, one of the petitioners has filed his objection on 23.06.2022 before the Appointing Authority to the effect that in the year 2013-14, one selection for the post of lecturers in 24 subjects was held on a vacancy of 1280 posts and no other selection process for the post of lecturers was held in the said recruitment year. It was further urged in the objections that seniority has to be determined for the objecting petitioner as per Rule 16(2) of the Rules of 2010 and Rule 5 of the Rules of 1991. The objecting petitioner has also said that though his rank was 1^st , but his name finds place at serial No.257 in the provisional seniority list. The petitioners say that the provisional seniority list dated 15.06.2022 has not been finalized by the Appointing Authority till date and the petitioners have filed various objections dated 12.11.2021, 28.05.2022, 28.07.2022 and 08.02.2024, seeking compliance of Rule 16(2) of the Rules of 2010 and the drawing up of a final seniority list in accordance with Rule 5 of the Rules of 1991. They say also that no order has been passed under Rule 16(2) of the Rules of 2010. The petitioners plead prejudice in not being assigned their due seniority based on their merit in the selections. There is a reference then by the petitioners to orders

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passed by this Court in Writ-A No.3522 of 2024 and Writ-A No.4133 of 2024, where directions were issued to finalize the seniority list of lecturers within three months, and thereafter, complete the process of promotion to post of senior lecturers within a specified period of time. The petitioners here also say that they are entitled to be considered for promotion to the post of a senior lecturer under the Uttar Pradesh Education (General Education Cadre) Service (Second Amendment) Rules 2002 under the 50% quota reserved for those appointed through the process of direct recruitment on the post of a lecturer. The petitioners say that denied their due seniority, their claim for promotion on the post of a senior lecturer under the 50% quota reserved for direct recruitment would be defeated and the petitioners discriminated against illegally.

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8. When this petition came up for admission on 18.04.2024, this Court passed the following order:

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“On 06.03.2024, in Writ-A No. 3522 of 2024, Jitendra Kumar and 14 other Lecturers, petitioned this Court seeking promotion to the post of Senior Lecturers, District Institute of Education and Training (D.I.E.T.) in the State of U.P. against 50 % promotion quota. Promotion would require drawing up of a final seniority list of Lecturers and, therefore, the petitioners of Writ-A No. 3522 of 2024 sought the drawing up of a final seniority list and a further direction to consider their case for promotion on the post of Seniority Lecturers against the promotion quota.

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This Court, vide order dated 06.03.2024, passed in Writ-A No. 3522 of 2024, directed the State Government, represented by the Principal Secretary (Basic Education), Lucknow, in the following terms:

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"Having heard learned counsel for the respective parties and having perused the records, I find that the seniority list is required to be finalized in the matter as per Rules, namely, U.P. Government Servants Seniority Rules, 1991 and the other relevant rules or law as may be applicable, after meeting the objections if any raised or may be raised by Lecturers working in various DIETs against tentative seniority list . The appropriate order finalizing the seniority list shall be passed in accordance with law as directed in hereabove within a period of three months from the date of production of certified copy of this order.

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It is further directed that soonafter the seniority list is finalized, respondent no. 1 shall proceed to finalize the promotion of Lectures working in various DIET of the State against 50 per cent vacancies of senior Lecturers meant to be filled up by way of promotion under the relevant rules framed in the above regard, as expeditiously as possible within a further period of next three months of finalization of seniority list.

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With the aforesaid observations and directions, this petition stands disposed of."

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The petitioners are also Lecturers, District Institute of Education and Training (D.I.E.T.) in the State of U.P. but they are direct recruits.

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The petitioners' case is that the seniority list of Lecturers should be determined finally in accordance with Rule 16(2) of the U.P. Teacher Education (Lecturers Cadre) Service Rules, 2010 (for short, 'the Rules of 2010') read with Rule 5 of the U.P. Government Servant Seniority Rules, 1991 (for short, 'the Rules of 1991').

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The grievance is that notwithstanding a direction to this effect issued to the Principal Secretary by this Court on 06.03.2024 in Writ-A No. 3522 of 2024, the seniority list of Lecturers, District Institute of Education and Training (D.I.E.T.) in the State of U.P. has not been finalised.

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The further case is that the final seniority list is to be decided in accordance with Rule 16(2) of the Rules of 2010 read with Rule 5 of the Rules of 1991, last mentioned.

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Let the Principal Secretary, (Basic Shiksha), Anubhag -4, U.P., Lucknow respond in the matter through an affidavit to be filed on or before 29.04.2024.

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Lay as fresh on 29.04.2024.

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Let this order be communicated to the Principal Secretary (Basic Shiksha), Anubhag -4, U.P., Lucknow by the Registrar (Compliance) within 24 hours.”

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9. It must be remarked here that the petitioners had not impleaded any of the persons, whose seniority, as proposed in the provisional seniority list, would be adversely affected, if the petitioners' case were accepted. Before the Court could take note of this fact and require the petitioners to implead some of the persons, likely to be adversely affected, if not all, in a representative capacity, an application for impleadment was made on behalf one Jitendra Kumar. We allowed that

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application vide order dated 29.04.2024 and Jitendra Kumar was impleaded as respondent No.4 to the writ petition.

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10. A personal affidavit of the Principal Secretary, Basic Education was filed on 08.05.2024 and by an order of that date, we permitted the learned Counsel for the petitioners to implead the Public Service Commission as a party respondent during the course of the day. Thus, the Public Service Commission came to be impleaded as respondent No.5 to the writ petition, also on 08.05.2024.

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11. A counter affidavit was filed on behalf of respondent No.4, Jitendra Kumar on 10.05.2024, to which the petitioners filed a rejoinder in Court on 14.05.2024. By the order passed on 14.05.2024, amongst others, this Court required the Public Service Commission to come up with a specific stand about the preparation and forwarding of a combined seniority list for the entire cadre based on merit and drawn up in accordance with Rules. For the purpose, this writ petition was adjourned to 17.05.2024. On 17.05.2024, the matter was adjourned to 23.05.2024, when on the last mentioned date, this petition was admitted to hearing on the affidavits that were on record. The hearing proceeded forthwith. Judgment was reserved.

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12. It is to be noted that Mr. Avneesh Tripathi, learned Advocate placed the Commission's stand on instructions as did Mr. Chandrakesh Rai, learned Counsel appearing on behalf of respondent Nos.6, 7, 8 and 9, and Mr. R.K. Ojha, learned Senior Advocate assisted by Mr. Shivendu Ojha, learned Counsel appearing on behalf of respondent Nos.10 and 11.

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13. It must be recorded that respondent Nos.6, 7, 8 and 9 were impleaded on an application made on their behalf by Mr. Chandrakesh Rai, Advocate in terms of an order passed on

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14.05.2024, whereas respondent Nos.10 and 11 were impleaded on an application made on behalf of these respondents by Mr. R.K. Ojha, Senior Advocate assisted by Mr. Shivendu Ojha, Advocate on 23.05.2024, before the matter proceeded to hearing. Like Mr. Avneesh Tripathi, addressing us on the basis of instructions, Mr. Chandrakesh Rai, Advocate and Mr. R.K. Ojha, Senior Advocate advanced their submissions at the hearing without a formal counter affidavit, and on the basis of whatever was the material already on record, besides the stand of the respondents disclosed in the affidavits filed in support of the impleadment applications. Apart from other things, due note must be taken of the fact that after as many as 8 lecturers appointed pursuant to the selections held in accordance with the advertisement dated 07.02.2014, likely to be adversely affected by the orders made in the present writ petition and the connected matter, have been impleaded as party-respondents to the writ petition, the entire body of such lecturers are there before this Court in a representative capacity and also heard through learned Counsel.

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14. Heard Mr. Shashi Nandan, learned Senior Advocate, assisted by Mr. Udayan Nandan, learned Counsel for the petitioners, Mr. Ashok Mehta, learned Additional Advocate General, assisted by Mr. P.K. Shahi, learned Additional Chief Standing Counsel, appearing on behalf of respondent Nos. 1, 2 and 3, Mr. Ashok Khare, learned Senor Advocate, assisted by Mr. Kauntey Singh, learned Counsel appearing for respondent No.4, Mr. Avneesh Tripathi, learned Counsel appearing for respondent No. 5, Mr. Chandrakesh Rai, learned Counsel appearing on behalf of respondent Nos. 6, 7, 8 and 9 and Mr. R.K. Ojha, learned Senior Advocate, assisted by Mr. Shivendu

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Ojha, learned Counsel appearing for respondent Nos. 10 and 11.

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15. The foremost objection, that has been taken on behalf of respondent No.4, is that the prayer for issue of a combined order of appointment mentioning the names of persons in order of seniority determined in the selection under Rule 16(2) of the Rules of 2010 is an act to be done or proceeding taken at the time of appointment. Here, no appointment is awaited. The appointments, to which the writ petition refers, are ones made on different dates between 19.05.2017 and 26.06.2020. Therefore, the submission of the learned Senior Advocate appearing for respondent No.4 is that the stage, apart from other things, to issue a combined order under Rule 16(2) last mentioned is already over. It is next contended that no final seniority list has yet been drawn up and it is only a provisional seniority list, that has been issued by the Appointing Authority. There is already a direction issued on 06.03.2024 by this Court in Writ-A No.3522 of 2024, requiring the final seniority list to be drawn up within a period of three months and the said period of time is not yet over.

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16. It is next urged by Mr. Ashok Khare, learned Senior Advocate that Rule 4 of the Rules of 2010 provides for the cadre of service. Rule 4(i) refers to the strength of service and each category of posts therein. The said Rule also refers to Appendix “A”. According to the learned Senior Advocate, a perusal of Appendix “A” would demonstrate that it visualizes separate cadres of lecturers for different subjects. The category of posts specified in the said Appendix is lecturer in an individual subject with the strength of that category also being separately specified. The qualifications required to be possessed for each such category of teaching post is different.

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The mere fact that all such posts of lecturers carry a single payscale would not lead to an inference that there exists a combined cadre of lecturers, irrespective of the subject, to which the posts pertain. He submits that Rule 16(2) bears reference to more than one order of appointment in respect of an individual selection for a specified subject; not for different subjects. It is also urged that the advertisement of posts was also specified subject-wise, as also the number of posts pertaining to each subject. The reservation break up is also specified subject-wise. In pursuance of the advertisement, written examinations were held. The question paper relating to each subject was different. After declaration of the written examination, interviews were held and these were also held subject-wise. The result of different subjects were declared separately by the Public Service Commission on varying dates between 01.08.2016 to 27.01.2020. The result for the post of lecturers in Civics was declared on 21.08.2016, whereas that relating to Arts was declared on 27.01.2020, with 22 others being declared in between. Based upon these separate results, appointment orders were also issued separately with regard to individual subjects between 19.05.2017 to 26.06.2020. The appointment orders for lecturers in Civics were issued on 19.05.2017, whereas that for lecturers in Arts were issued on 26.06.2020 with 22 other subjects in between the two dates.

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17. It is urged that the result of the post of lecturer in English stood declared on 15.12.2017 and on the basis thereof, respondent No.4 was appointed by an appointment order dated 30.01.2018. There is no occasion for a comparison of any kind between respondent No.4 and the petitioners. It is also emphasized that it is incorrect to urge that there exists a single selection, merely because a common advertisement was

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issued. A single advertisement does not make the selection for the post of lecturers in different subjects a single selection. This reasoning is urged to be contrary to the Rules governing recruitment.

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18. Similar submissions have been advanced by Mr. R.K. Ojha, learned Senior Advocate and Mr. Chandrakesh Rai, Advocate on behalf of other private respondents.

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19. Mr. Shashi Nandan, learned Senior Advocate, on the other hand, has said in his rejoinder that it is incorrect to say that this petition before the drawing up of a final seniority list is not maintainable. The petitioners seek a direction to the respondents to comply with Rule 16(2) of the Rules of 2010 read with Rule 5 of the Rules of 1991, before preparation and publication of the final seniority list. He urges that since the petitioners along with other lecturers have been appointed as a result of one selection, a combined seniority list ought have been issued by the respondents. Their failure to do so will not only result in contravention of the Rules, but also cause hardship and prejudice to the petitioners. It is further submitted by Mr. Shashi Nandan that the result of different subjects, declared on different dates, would not entitle the candidates to seniority according to the date of declaration of their result or the date of their appointment, based on the same selections held pursuant to a single advertisement. He submits that it is an utter misconception to think that lecturers in different subjects appointed under the Rules of 2010 comprise different cadres subject-wise. Instead, the lecturers were part of the service belonging to one cadre, to wit, the lecturers. He emphasizes that there is no provision under the Rules of 2010, which says or suggest that lecturers teaching different subjects constitutes separate cadres. Also, the Rules do not envisage a seniority list

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of lecturers to be drawn up subject-wise. It is emphasized that the petitioners were appointed through a single process of selection, but due to reasons beyond the petitioners' control, were issued appointment letters on different dates. It cannot be denied, according to Mr. Shashi Nandan, that appointment on posts of lecturers has been made through one selection process, based on a single advertisement. He says, therefore, that the seniority list of directly appointed lecturers is to be determined in accordance with Rule 5 of the Rules of 1991, after due compliance of Rule 16(2) of the Rules of 2010. It is urged that the illegality in determining the petitioners' seniority with reference to the issue of their appointment orders is that the relevant Rule clearly says that seniority inter se persons appointed as a result of one selection, shall be the same as shown in the merit list. It is emphasized by the learned Senior Advocate for the petitioners that the procedure adopted by the respondents in drawing up the tentative seniority list has led to a situation, where a candidate obtaining higher marks is placed below a candidate, who had obtained lesser marks in the selection process. This clearly violates Rule 5 of the Rules of 1991.

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20. Mr. Avneesh Tripathi, learned Counsel submits that it is difficult for the Public Service Commission to provide the merit list of all candidates, who were selected in the selections held on the basis of the advertisement dated 07.02.2014, to the Appointing Authority.

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21. Mr. Ashok Mehta, learned Additional Advocate General assisted by Mr. P.K. Shahi, learned Additional Chief Standing Counsel appearing on behalf of respondent Nos.1, 2 and 3, the State respondents, has made his submissions on the foot of the personal affidavit filed by the Principal Secretary, Basic

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Education, Government of U.P. He acknowledges that the petitioners were selected pursuant to the advertisement dated 07.02.2014 by the Public Service Commission relating to 1280 posts of lecturers in different subjects for the SCERT, its units and the DIETs across the State. Recommendations were made subject-wise by the Public Service Commission to the office of the SCERT. Based on the recommendations of the Public Service Commission, the selected candidates were issued appointment letters on various dates between the years 2017 and 2021. These candidates joined their respective posts. After joining, the lecturers moved representations for regularization of their service and for the issue of a seniority list. Consequent to these representations, the then Director General of School Education, U.P., Lucknow instructed the Director, SCERT to take appropriate action. In compliance with the directions aforesaid, the SCERT vide a letter dated 15.06.2022 published the provisional seniority list of 1112 lecturers, inviting objections within 15 days. It is pointed out by Mr. Mehta that for the redressal of the various objections received against the provisional seniority list, an internal Committee was constituted at the office of the SCERT, but on account of non-disposal of the objections by the Committee, the Director General of School Education, U.P. vide an order dated 06.09.2023 constituted a High Level Committee for the determination of seniority of lecturers.

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22. The next event is that on the basis of the recommendations of the High Level Committee, two letters, one dated 29.02.2024 and the other 23.04.2024, were sent to the Public Service Commission to provide a combined seniority list/ merit list of selected lecturers, or a list of their marks obtained in the written examination and interview separately as well as the

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total marks obtained, besides other necessary details, like date of birth etc. A copy each of both these letters dated 29.02.2024 and 23.04.2024 have been annexed to the Principal Secretary's personal affidavit, to which Mr. Mehta has drawn the Court's attention. It is next pointed out by the learned Additional Advocate General that relating to the determination of seniority of lecturers, Writ-A No.3522 of 2024 was instituted before this Court, where the following order was passed on 06.03.2024, deciding the writ petition:

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“.......

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Having heard learned counsel for the respective parties and having perused the records, I find that the seniority list is required to be finalized in the matter as per Rules, namely, U.P. Government Servants Seniority Rules, 1991 and the other relevant rules or law as may be applicable, after meeting the objections if any raised or may be raised by Lecturers working in various DIETs against tentative seniority list . The appropriate order finalizing the seniority list shall be passed in accordance with law as directed in hereabove within a period of three months from the date of production of certified copy of this order.

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With the aforesaid observations and directions, this petition stands disposed of.”

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23. It is next pointed out that various writ petitions have been filed by lecturers posted at the SCERT Headquarters and the DIETs, besides units under the control of the SCERT, praying for directions to issue a seniority list and for consideration of their promotion. He says that this is the prayer, which the petitioners here also make.

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24. In paragraph No.18 of the personal affidavit filed by the Principal Secretary, Basic Education, it is averred:

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“18. That in that regard, it is respectfully

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submitted that in terms of subject-matter mentioned in the above-reference letter of Director S.C.E.R.T. dated 01.05.2024, the combined seniority/ merit list of Lecturers working in Council Office and D.I.E.T under its control in respect of making determination of seniority list has not been received from the Uttar Pradesh Public Service Commission, Prayagraj. However, in this regard, two consecutive letters dated 29.02.2024 and 23.04.2024 has been sent to Uttar Pradesh Public Service Commission, Prayagraj in that regard and thus, after receipt of above-referred information, further proceedings in respect of determination of seniority list can be taken. Therefore, in that regard and also in respect of disposal of promotion related discrepancies and comprehensive matter it is likely to take more procedural time. True copy of letter dated 01.05.2024 of Director S.C.E.R.T is being annexed herewith and marked as Annexure-5 to this affidavit.”

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25. Upon hearing learned Counsel for the parties, this Court is of opinion that the Appointing Authority has not yet finalized the seniority list, and, in fact, has demanded a copy of the combined seniority list/ merit list of lecturers working with the SCERT and its units and the DIETs under its control across the State. All these lecturers have been selected pursuant to a single advertisement issued by the Public Service Commission on the requisition of the Appointing Authority. Rule 5 of the Rules of 1991 reads:

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“ 5. Seniority where appointments by direct recruitment only.– Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :

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Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final :

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Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.

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Explanation.– Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection.”

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26. The question if the petitioners were selected as a result of one selection within the meaning of Rule 5, so that all candidates appointed through direct recruitment would have to have their inter se seniority shown by the Commission in a merit list prepared for the purpose, is a matter to be examined in the first instance by the Appointing Authority, before whom determination of the final seniority list is still pending. No doubt, this question is essentially a legal one, besides the other question if all the lecturers comprise a single cadre or different cadres, subject-wise. But, it would be inappropriate for this Court to intervene at this juncture and decide these issues, when finalization of the seniority list is yet to be done by the Appointing Authority. At the same time, for whatever purpose and taking whichever view of the matter, the Appointing Authority needs the Public Service Commission to supply it with the combined merit list of lecturers, working with the SCERT and its units, besides the DIETs under its control, all selected on the basis of the advertisement dated 07.02.2014. The letter dated 01.05.2024 is quite detailed and we would refrain from commenting on its contents or purpose, except that it has been issued pursuant to the orders passed on 18.04.2024 in the present writ petition, asking the Principal Secretary, Basic Education to respond.

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27. There is an earlier order passed in Writ-A No.3522 of 2024, decided on 06.03.2024, which directs the respondents to

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finalize the seniority list of lecturers, working with the SCERT and its units and the various DIETs, in accordance with law and also proceed with and finalize the promotion matters of these lecturers within time, indicated in that order. Apparently, the Director, SCERT, the Appointing Authority could not finalize the seniority list and a fortiori promotions to the cadre of senior lecturers because of the lack of provision of a combined seniority/ merit list of lecturers now working with the SCERT and its units, besides the various DIETs, all selected on the basis of the advertisement dated 07.02.2014. The Public Service Commission, in the opinion of this Court, is, therefore, obliged to provide the combined seniority list of lecturers selected on the basis of the advertisement dated 07.02.2014 to the Appointing Authority, to wit, the Director, SCERT.

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28. In the circumstances, a mandamus is issued to the Public Service Commission to provide a merit/ seniority list of all lecturers selected on the basis of the advertisement dated 07.02.2014 to the Appointing Authority, to wit, the Director, SCERT within a month of the date of receipt of a copy of this order. A mandamus is further issued to the Director, SCERT to the effect that he will, upon receipt of the merit list/ seniority list from the Public Service Commission, grant to the lecturers selected on the basis of the advertisement dated 07.02.2014, a time period of 15 days last mentioned, to put in their objections to the tentative seniority list. As soon as the seniority list is received from the Public Service Commission, it will be published by the SCERT on its website. After lapse of the period of 15 days, the Director, SCERT will proceed to issue a final seniority list within a period of two months, disposing of all objections to the provisional seniority list submitted to him within the specified period of time. It is clarified that all contentions of

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parties regarding the principles applicable for the determination of seniority, including the definition of cadre will remain open to be decided by the Appointing Authority, and, upon issue of the final seniority list, it will be open to the parties to suit their rights before a competent forum on all contentions raised in this writ petition, if the party seeking to assail the final seniority list finds himself/ herself prejudicially affected upon determination of his/ her seniority made by the Appointing Authority.

¶92

29. This writ petition is allowed in part , accordingly.

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30. There shall be no order as to costs.

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31. Let a copy of this order be communicated to the Secretary, Uttar Pradesh Public Service Commission, Prayagraj and the Principal Secretary (Basic Education), Lucknow by the Registrar (Compliance).

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Order Date :- 05.11.2024 Anoop

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J.J. Munir Judge

¶97

Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad

Rajeev Kumar and 22 Others v. State of U.P. and 2 Others

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Rajeev Kumar and 22 Others v. State of U.P. and 2 Others

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