Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 421

IN THE HIGH COURT OF ALLAHABAD
CHANDRA DHARI SINGH, J.
Pankaj Singh And 5 Ors. - Petitioners
Versus
State of U.P. Thru. Prin. Secy. Finance Lucknow And Ors. - Respondents
Service Single No.24163 of 2019, Connected with Service Single No.3522 of 2018, Service Single No.33850 of 2019, Service Single No.14474 of 2018, Service Single No.19124 of 2018, Service Single No.22992 of 2018, Service Single No.29564 of 2018, Service Single No.5246 of 2019, Service Single No.34847 of 2019, Service Single No.31120 of 2019, Service Single No.1227 of 2020, Service Single No.2346 of 2020, Service Single No.1930 of 2020, Service Single No.2283 of 2020, Service Single No.3920 of 2020, Service Single No.5096 of 2020, Service Single No.4809 of 2020, Service Single No.8430 of 2019, Service Single No.13450 of 2020, Service Single No.19826 of 2020, Service Single No.612 of 2021, Service Single No.18174 of 2020, Service Single No.5117 of 2018, Service Single No.24568 of 2019
Decided On : 22-06-2021

Advocates Appeared:
For the Petitioner: Laltaprasad Misra, Manoj Kumar Mishra.
For the Respondent: C.S.C., Gaurav Meharotra.

Point of Law: Post of Senior Clerk/Assistant Treasury Accountant Qualifications - It is settled law that there is no legal right vested in candidates to be selected for appointment - Selected candidates have only "a right to be considered" whereas in facts of present case, petitioners are not even selected for post in question.

Headnote:
Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 - U.P. Treasury Ministerial Service Rules, 1978 - Rule 8 of 1978 - Direct recruitment – Post of Senior Clerk/Assistant Treasury Accountant – Promotion - Advertisement – Challenged - U.P. Subordinate Service Selection Commission - Challenged Advertisement issued by U.P. Subordinate Service Selection Commission for holding direct recruitment on post of Assistant Treasury Accountant. In said category of writ petitions, petitioners have also prayed for a direction to be issued to District Magistrates of their respective districts to consider them for promotion to post of Senior Clerk/Assistant Treasury Accountant in accordance with Rules, 1978 - Whether an administrative instruction has a statutory force or not cannot be determined by checking whether statutory provisions permit the administrative agency to issue such instructions.
Finding of the court: Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right - any executive instruction cannot be issued in contravention of the rules framed under the proviso to Article 309 of Constitution of India and statutory rules cannot be set at naught by the executive fiat - Policy taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of Constitution of India - Merely because a candidate's name appear in the select list, it will not entitle him to be appointed. Thus, facts of the present case is worse as the present petitioners are not even falling within the category of select list. Thus, petitioners of Category - II & III of the writ petitions have no legal right to be appointed for the post in question. In such circumstances, impugned order dated 25.07.2019 withdrawing the requisition dated 23.06.2016 and advertisement dated 05.07.2016, which were violative of 1978 Rules, is correct and in accordance with law.
Result: Petitions allowed and disposed of

JUDGMENT :

1. Since common questions are involved in all the above-mentioned writ petitions, they are being decided together.

2. Mainly, there are three categories of writ petitions:

(I) Petitions preferred by persons working on the post of Junior Clerk/Routine Grade Clerk who have challenged Advertisement No.12-Exam/2016 dated 05.07.2016 issued by U.P. Subordinate Service Selection Commission (hereinafter referred as 'the Commission') for holding direct recruitment on the post of Assistant Treasury Accountant. In the said category of writ petitions, the petitioners have also prayed for a direction to be issued to District Magistrates of their respective districts to consider them for promotion to the post of Senior Clerk/Assistant Treasury Accountant in accordance with The U.P. Treasury Ministerial Service Rules, 1978 (hereinafter referred as "1978 Rules");

(II) Petitions preferred by persons who have challenged order dated 25.07.2019 passed by Government of U.P. whereby requisition dated 23.06.2016 sent to the Commission for making direct recruitment to the post of Assistant Treasury Accountant and advertisement dated 05.07.2016 have been withdrawn; and

(III) Petitions preferred by persons for a direction to be issued to the respondents for declaration of result of selection held by the Commission on the post of Assistant Treasury Accountant pursuant to Advertisement dated 05.07.2016.

3. Before proceeding further with the case(s) in hand, it would be appropriate to first take a look at history of the litigation, which are as follows:-

(i) On 20.11.1987, Government of U.P. in exercise of power conferred under Rule 4 of 1978 Rules issued a Government Order thereby changing the nomenclature of posts as indicated in 1978 Rules and re-designated the posts of Routine Grade Clerk/Junior Clerk as Assistant Accountant Grade – II and Senior Grade Clerk as Assistant Treasury Accountant Grade – I. The minimum educational qualification for direct recruitment to the post of Assistant Treasury Accountant Grade – II was prescribed as a Bachelor Degree in Maths or Commerce (Accountancy) from a recognised University.

(ii) On 21.03.1990, Government of U.P. exercised its power under Rules 4 and 26 and issued a Government Order implementing the recommendations of the Pay Committee (1989) and by merging the post of Assistant Treasury Accountant Grade – I and Assistant Treasury Accountant Grade - II together created the post of “Assistant Treasury Accountant”. It was also decided that 72 posts of Assistant Treasury Accountant Grade – II be re-designated as Junior Clerks and educational qualification for Junior Clerks would be Intermediate (Commerce with Accountancy) and recruitment on the post of Junior Clerk be made through the selection board.

(iii) The State Government decided to fill up the post of Assistant Treasury Accountant by direct recruitment. The said decision had to be taken as only 72 posts of Junior Clerks existed after restructuring the cadre and it was impossible to fill all the posts of Assistant Treasury Accountant only by way of promotion.

(iv) Government Order dated 30.04.1993 was issued to mitigate the hardship and the situation of impossibility created on account of the restructuring of the cadre in order to implement the recommendations of the Pay Committee.

(v) Government of U.P. proceeded to make direct recruitment on the post of Assistant Treasury Accountant on the strength of relaxation made and the alterations effected vide Government Orders dated 20.11.1987, 21.03.1990 and 30.04.1993 to the U.P. Treasuries Ministerial Establishment.

(vi) Pursuant to requisition made by State Government, the Commission issued an advertisement dated 18.05.2015 inter-alia notifying 304 permanent posts of Assistant Treasury Accountants in the Pay Scale of Rs.5200-20200/- with Grade Pay of Rs.2800/- belonging to the Department of Director, Treasur

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2021 Supreme(All) 421

Cases Referred (32)