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2010 Supreme(All) 2195
[2010(9) ADJ 658 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND VIRENDRA SINGH, JJ.
OMVIR SHARMA ....Appellant
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Special Appeal Nos. 147 and 287 of 2007, decided on 13th July, 2010)
Counsel :
S.C. Dwivedi and Ravi Kant for the Appellant; Ashok Khare, Amit Sthelkar, K.R. Sirohi, P.N. Ojha and Siddharth Khare, C.S.C. for the Respondents.
Headnote:Seniority—Post of Sadar Munsarim in Subordinate Courts—Single Judge holding that seniority of ministerial staffs of Subordinate Courts shall be governed by U.P. Government Servants Seniority Rules, 1991 and not by Subordinate Civil Courts Ministerial Establishments Rules, 1947—Single Judge quashed selection of respondent No. 4 on post of Sadar Munsarim—Question in special appeal is as to whether for determination of seniority of ministerial staffs of Subordinate Courts, 1947 Rules are still applicable and whether 1991 Rules are not applicable—Held, 1991 Rules are applicable with regard to determination of seniority of ministerial staffs of Subordinate Courts, and from enforcement of 1991 Rules, Rule 19 of 1947 Rules is no longer in operation having been impliedly overruled by 1991 Rules—Thus, Single Judge did not commit any error in holding that 1991 Rules are applicable for determination of seniority of ministerial staffs of Subordinate Courts—And view of Single Judge is affirmed—Further, determination of seniority after promotion in higher grade has to be determined in accordance with 1991 Rules—Prior to promotion in scale of Rs.1350-2200, writ petitioner was shown senior to appellant, who will regain his seniority on promotion in higher grade, even though appellant in higher grade received promotion earlier to writ petitioner—In all gradation list, writ petitioner was shown senior, which was interfered with by Administrative Committee in its report, dated 7.8.2006 without consideration of 1991 Rules—Single Judge justified in maintaining seniority of writ petitioner, who was throughout shown as senior to appellant. [U.P. Government Servants Seniority Rules, 1991—Rules 2, 3, 4(g); Subordinate Civil Courts Ministerial Establishments Rules, 1947—Rule 19; Constitution of India, 1950—Article 235]. [Paras 1, 4, 10, 15, 21 and 22]
Result; Appeals Dismissed.
Hon’ble Ashok Bhushan, J.—These two special appeals have been filed against the same judgment and order of Hon’ble Single Judge dated 9.1.2007, allowing the writ petition No. 47915 of 2006, filed by Satya Prakash Sharma. Appeal No. 147 of 2007 has been filed by Omvir Sharma, who was the respondent No. 4 in the writ petition. By the impugned judgment and order, the selection of respondent No. 4 on the post of Sadar Munsarim, which was impugned in the writ petition was quashed. The High Court also feeling aggrieved specially with the view of Hon’ble Single Judge that seniority of ministerial staffs of the subordinate Courts shall be governed by U.P. Government Servants Seniority Rules, 1991 and not by the Subordinate Civil Courts Ministerial Establishment Rules, 1947, has come up in the appeal.
2. We have heard Sri S.C. Dwivedi, learned counsel for the appellant in Special Appeal No. 147 of 2007, Sri Ashok Khare, learned Senior Advocate has appeared on behalf of respondent No. 4. Sri Amit Sthelkar has appeared for the appellant in Special Appeal No. 287 of 2007 on behalf of High Court of Judicature at Allahabad.
3. The facts giving rise to the writ petition has been stated in the impugned judgment by Hon’ble Single Judge, which need no repetition except to refer the basic facts to appreciate the issues raised in the present appeal. The appellant Omvir Sharma, who was respondent No. 4 in the writ petition, was appointed as Clerk on 3.1.1973 whereas Satya Prakash Sharma, the respondent No. 4 in the appeal, who was petitioner in the aforesaid writ petition was appointed as Clerk on 8.9.1971. Both the appellant and the respondent were promoted in the next higher grade of Rs. 1200-2040 in the year 1994. The seniority list of the ministerial staffs was prepared on 1.6.1987, in which writ petitioner was at serial No. 22, whereas the present appellant who was respondent No. 4 in the writ petition was shown at serial No. 25. The exercise for promotion in the next higher grade of 1350-2200 was undertaken in 1994 at which time, the writ petitioner was the senior most in the lower grade. On 12.5.1994, the writ petitioner moved an application, requesting the District Judge that he may not be considered for promotion in the next higher grade of Rs. 1350-2200 due to illness of spondylitis. He stated that he was under treatment and was not in a position to undertake the heavy work load. Again on 13.5.1994 he made a request that he be allowed to permanently continue in scale of Rs. 1200-2040. The said request of the petitioner was considered by a Committee, which submitted a report to the District Judge. The District Judge on 9.6.1994 accepted the request of the petitioner and took a decision that the writ petitioner be debarred permanently for promotion in the next higher grade. The appellant was promoted in the grade of 1350-2200 on 1.9.1995. It appears that subsequently in 1996, the Promotion Committee recommended writ petitioner for promotion in the next higher grade but on an application moved by the writ petitioner that he was not willing to accept the higher grade, his case was deferred. A report dated 16.7.1996 was submitted by the Committee constituted by the District Judge in which report, the case of promotion of the petitioner was deferred till he made request for promotion in the higher grade. The writ petitioner on 30.11.1996 made an application that he be given the higher grade of Rs. 1350-2200 but he be not given the work of Peshi. The Committee considered the case of all the employees including the writ petitioner Satya Prakash Sharma and submitted its report dated 6.12.1996, recommending promotion of Satya Prakash Sharma in the grade of 1350-2200. The District Judge on 2.1.1997 approved the report and promoted the writ petitioner in the scale of 1350-2200. A seniority list was also issued in 1995 as well as in the year 2005, in which the writ petitioner was shown senior. The appellant was promoted in the next higher gra
