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1999 Supreme(All) 875
IN THE HIGH COURT OF ALLAHABAD
V. M. Sahai, J.
VIRENDRA KUMAR MISRA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 40769 Of 1996
Decided On : 06/16/1999
Ashok Khare, D.D.CHAUHAN, G.C.Yadav, G.K.SINGH, R.N.Singh, U.N.Sharma
The post of Stenographer Grade-I is a promotional post and has to be filled by promotion. The procedure for direct recruitment can only be resorted to if no suitable candidate is available for promotion.
Headnote:
DIRECT RECRUITMENT - PROMOTION - STENOGRAPHER GRADE-I - U. P. DISTRICT OFFICE (COLLECTORATE) CLERK GRADE SERVICE RULES, 1980 - RULE 5 (II) - RULE 17 - PROCEDURE - INTERPRETATION - SUITABILITY - SELECTION COMMITTEE - CHARACTER ROLL ENTRIES - JUDICIAL REVIEW.
Fact of the Case:
A post of Stenographer Grade-I fell vacant in the Collectorate of Azamgarh. Another vacancy of Stenographer Grade-II was created under the Sub-Divisional Magistrate, Budhanpur, Azamgarh. The respondents advertised for filling up the vacancy of Stenographer Grade-I and Grade-II by direct recruitment. The petitioner, who was not registered in the employment exchange, applied for direct recruitment. The selection committee constituted under Rule 16 of the U. P. District Office (Collectorate) Clerk Grade Service Rules, 1980 (Rules) found no departmental candidate suitable for promotion to the vacant post of Stenographer Grade-I and recommended the petitioner's appointment. The District Magistrate appointed the petitioner on a temporary basis and later confirmed him. Respondent No. 5, who was found unsuitable for promotion, made a representation to the Commissioner stating that the petitioner was attached as Hindi Stenographer to Collector, Azamgarh and worked from 1963 to 1989. He claimed that the District Magistrate was interested in making the appointment on the post of Stenographer Grade-I and that he was illegally denied promotion. The Commissioner allowed the representation and directed that respondent No. 5 be promoted as Stenographer Grade-I and the petitioner be reverted to the post of Stenographer Grade-II. The petitioner challenged the Commissioner's order before the High Court, which allowed the petition and quashed the order. The Commissioner reconsidered the matter and again allowed the representation of respondent No. 5, holding that the procedure for direct recruitment adopted by the respondents was illegal and that respondent No. 5 was illegally denied promotion. The petitioner challenged this order in the present writ petition.
Finding of the Court:
The High Court held that the Commissioner did not commit any error of law in deciding the representation on merits. The Court interpreted Rule 5 (ii) and Rule 17 of the Rules and held that the post of Stenographer Grade-I is a promotional post and has to be filled by promotion. The Court held that the respondents could not adopt the simultaneous procedure for filling up the post of Stenographer in Grade-I. The Court also held that the selection committee was required under the rules to take a decision on the suitability of a promotee on the record and on no other material. The Court found that the record of the test held by the Additional District Magistrate did not form part of the record which was required to be submitted to the selection committee under Rule 17 (2) and that the opinion of the selection committee was based on extraneous material and against the rules. The Court also found that the entire selection process was suspicious and that the authorities played with the rules and went to the extreme to help the petitioner and harm the respondent No. 5.
Issues: 1. Whether the Commissioner erred in law in deciding the representation of respondent No. 5 on merits. 2. Whether the procedure for direct recruitment adopted by the respondents was illegal. 3. Whether respondent No. 5 was illegally denied promotion. 4. Whether the selection committee was required under the rules to take a decision on the suitability of a promotee on the record and on no other material.
Ratio Decidendi: 1. The Commissioner did not commit any error of law in deciding the representation on merits as he was directed by the High Court to decide the matter afresh keeping in view the observations made in the judgment and in accordance with law after giving opportunity of hearing to the petitioner and respondent No. 5. 2. The procedure for direct recruitment adopted by the respondents was illegal as it was contrary to the rules and the respondents could not have resorted to appointment by direct recruitment without first determining whether any Stenographer Grade-II was suitable for promotion. 3. Respondent No. 5 was illegally denied promotion as the selection committee found him unsuitable based on extraneous material and against the rules. 4. The selection committee was required under the rules to take a decision on the suitability of a promotee on the record and on no other material.
Final Decision: The High Court dismissed the writ petition and directed the respondents to treat respondent No. 5 as Stenographer Grade-I w. e. f. 6. 9. 1989 and to pay him the difference of salary from 6. 12. 1996. The Court also directed that the post retiral benefits shall be calculated treating him as Stenographer Grade-I w. e. f. 6,9. 1989.
( 1 ) A post of Stenographer grade-I fell vacant in the collectorate of Azamgarh on account of retirement of one Shri Mahadeo Prasad on 31. 7. 89. Another vacancy of Stenographer grade-II was created under the Sub-Divisional Magistrate, Budhanpur, Azamgarh. The respondents on 3. 9. 89 advertised in the news paper aaj for filling up the vacancy of Stenographer grade-I and grade-II by direct recruitment. The advertisement permitted that even those candidates could apply whose names were not registered in the employment exchange. The candidates were further informed that they should be personally present with their testimonials, etc. on 5. 9. 89 at 10 a. m. as their tests may be held at 12 p. m. on the same day. The petitioner was not registered in the employment exchange. He applied for direct recruitment. The respondent No. 4 constituted a selection committee under Rule 16 of the U. P. District Office (Collectorate) Clerk Grade service Rules, 1980 (in brief rules ). The test for direct recruitment was held on 5. 9. 89. On next day, the selection committee did not find any candidate, from grade-II, suitable for promotion as they could not qualify in the written test held on 6. 9. 89. The selection committee decided that since no departmental candidate was suitable to be promoted on the vacant post of Stenographer grade-I, the petitioner who on the test held on 5. 9. 89 was placed at serial number one may be appointed. The Additional District Magistrate forwarded the recommendation of the selection committee to the District Magistrate who appointed him on the same day, i. e. , 6. 9. 89 as stenographer grade-I on temporary basis and confirmed him by order dated 8. 9. 90.
( 2 ) RESPONDENT No. 5. Shyam Nath Chaurasia, who was found unsuitable for promotion made a representation to the Commissioner stating that the petitioner was attached as Hindi stenographer to Collector. Azamgarh and worked from 1963 to 1989. He worked from 1969 to 1973 with Sub-Divisional Magistrate. Sadar. He worked as Hindi Stenographer to Collector from 1973 to 1975. He worked as Stenographer to Additional District Magistrate (Finance and revenue from 1978. Since 1985 he was working on the newly created post of Stenographer to additional District Magistrate (Executive) till the date he made representation. He further said in his representation that the District Magistrate. Azamgarh was interested in making appointment on the post of Stenographer grade-I which is clear from the fact that he was present at the time of written test of the respondent No. 5 and directed the Additional District Magistrate (Executive)to increase the speed of the dictation, therefore, the petitioner could not take the dictation properly nor could he convert the same into a proper type-written matter. On the same date, the petitioner was selected by direct recruitment. Since the respondent No. 5 was found unsuitable, he declared his intention of challenging the selection by a writ petition. The District Magistrate on corning to know of it, in order to bring pressure upon the respondent No. 5, transferred him and posted him in the court of Sub-Divisional Officer, Lalganj. When he approached the collector to explain his difficulties, then the Collector told him that if he does not file a writ petition, then his transfer order to Lalganj will be stayed. He could not also dare to file a representation to the Commissioner out of fear of the Collector. He filed a representation to the commissioner only after the Collector was transferred. He further stated that there were four candidates working as stenographer grade-II including him who were eligible for promotion as stenographer grade-I. Out of the four departmental candidates, two candidates, namely, shivanand and Shankar Ram did not participate in the selection and gave in writing that their candidature should not be considered for promotion to the post of Stenographer grade-I. The other two persons Adil Abbasi and respon
