Point of Law: Service Law - Appointment of persons made beyond the sanctioned strength - held, entitled for seniority

JUDGMENT :

1. Heard Dr. L.P. Mishra, learned counsel appearing on behalf of the State/appellants and Shri Anil Kumar Tiwari, learned Senior Advocate assisted by Shri Apoorva Tiwari, learned Counsel for the respondents.

2. All the appeals have been preferred against the judgment and order dated 21.09.2017 passed by learned Single Judge in Writ Petition (S/S) No. 5828 of 2015 (Dr. Kishore Tandon and Others vs. State of U.P. and Others) along with connected Writ Petition (S/S) No. 12598 of 2017 (Hari Shankar Nath Tiwari and Others vs. State of U.P. and Others), on the ground that the directions issued by the learned Single Judge with regard to reopening of the appointment/regularisation of the Lower Division Assistants (hereinafter referred as “LDA”) in U.P. Secretariat under U.P. Secretariat Upper Division Assistant and Lower Division Assistant (Regularisation of Officiating Promotion) Rules, 1990, are in utter violation of the directions issued by a coordinate Bench of this Court in Special Appeal No. 31 of 2005 vide judgment and order dated 8th May, 2015, which have been upheld by the Hon'ble Apex Court in SLP (C) No. 23254 of 2014 vide order dated 29.03.2017.

3. Factual matrix of the case is that the respondents-petitioners, who were selected and appointed through U.P. Public Service Commission on the post of Lower Division Assistant (hereinafter referred to as the ‘LDA’) approached the writ Court with the grievance that the directions issued by the coordinate Bench of this Court in Special Appeal No. 31 of 2005 dated 8th May, 2015 were not followed at the time of preparation of seniority list dated 08.09.2015. Further, Rule 9(2) of U.P. Government Servant Seniority Rules, 1991 was also not considered. The prayer sought by the respondent-petitioners in the said writ petition was that the seniority list of LDA of U.P. Secretariat is liable to be set aside. They also prayed for mandamus commanding the appointing authority to re-determine the seniority of the respondent-petitioners and place them in the seniority list after serial no. 810. The prayers sought in the said writ petition are reproduced hereunder:

“(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.09.2015 and the final seniority list for the cadre of assistant review officer as contained in Annexure No. 1 to this writ petition.

(b) to issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 to 3 to re-determine the seniority of the petitioner and place them in the seniority list after serial no. 810.”

4. While placing the facts of the case, Shri L.P. Mishra, learned counsel for the appellants submitted that in the Secretariat of Uttar Pradesh, the ministerial staffs were regulated under the provisions of U.P. Secretariat Ministerial Staff Rules, 1942 (hereinafter referred to as ‘Rules, 1942’):

Due to exigency of service, the persons working on the posts of Typist, Telephone Operators, Tele Printer, Talex Operator/Junior Grade Clerk were allowed to officiate as LDA from 1st April, 1989 and were continuing as such. Similarly, persons substantively appointed as LDA were allowed to officiate in the capacity of Upper Division Assistant (for short the ‘UDA’). Learned counsel for the appellants submitted that thereafter, in exercise of powers conferred under Article 309 of the Constitution of India, Hon’ble Governor vide Notification dated 23.07.1990 was pleased to frame Rules for regularisation/appointment of the persons officiating/working on the post of LDA as well as UDA in the U.P. Secretariat. The said Rule is known as U.P. Secretariat Upper Division Assistant and Lower Division Assistant (Regularisation of Officiating Promotion) Rules, 1990 (hereinafter referred to as Rules, 1990).

Further submission advanced by Dr. L.P. Mishra is that on 23.07.1990, total sanctioned strength of LDA