Ashok Bhushan, J. - (1.) 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 lmpugned 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 of2007, 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. 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. Areport 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 grade of Rs. 1400-2300 on 1.2.1997 which scale was later merged in the grade of Rs. 4500- 7000. The writ petitioner was also promoted in the scale of 1400-2300 on 1.12.1997, which scale was later merged in the scale of 4500-7000. The representations were submitted by the appellant against the seniority of the writ petitioner from time to time but seniority position was not altered till the impugned decision was taken. A post of Sadar Munsarim fell vacant. The petitioner was also posted as Sadar Munsarim at family Court Meerut on 1.7.2003 till October, 2005. By order dated 21.8.2006, the appellant Om Veer Sharma was promoted in the pay scale of Rs. 5500-9000 and was posted as Sadar Munsarim and R.K. Goel, who was working as Sadar Munsarim was posted as Sadar Munsarim in the Family Court and the petitionerwas sent back as Munsarim Reader in A.C.J.M Court No. 7. On representation submitted by the appellant against the seniority of the writ petitioner, a Committee was constituted, which submitted a report on 7.8.2006. The District Judge by the impugned order dated 10.8.2006, approved the report accepting the representation of Omvir Sharma regarding seniority and directed preparation of gradation list accordingly. The petitioner filed the writ petition challenging the aforesaid order of the District Judge dated 10.8.2006. Hon'ble Single Judge by the impugned judgment allowed the writ petition filed by Satya Prakash Sharma and quashed the orders promoting Omvir Sharma as Sadar Munsarim and decision regarding determination of his seniority. Hon'ble Single Judge held that after enforcement of U.P. Government Servants Seniority Rules, 1991, provisions of The Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as 1947 Rules) regarding seniority have been impliedly overruled and determination of seniority thereafter has to take place in accordance with 1991 Rules. It has been held that writ petitioner having been subsequently promoted in the year 1996-97 in the higher grade shall regain his seniority by virtue of 1991 Rules. It has been held that writ petitioner was throughout shown as senior to the appellant Omvir Sharma and there was no valid reason for altering the seniority position as was dome by the impugned decision. It has been held by Hon'ble Single Judge that non-consideration of the writ petitioner for promotion on the post of Sadar Munsarim vitiated the entire exercise.
(3.) LEARNED Counsel appearing for appellant Omvir Sharma challenging the impugned judgment of Hon'ble Single Judge contended that the view of Hon'ble Single Judge that 1991 Rules are applicable with regard to determination of seniority of ministerial staffs of the subordinate Courts is erroneous. It is contended that service conditions including determination of seniority of ministerial staffs of subordinate Courts are governed by 1947 Rules and 1991 Rules being general rules applicable on the Government servants, have no application on the subordinate Courts staffs. It is submitted that 1947 Rules are special rules hence, they cannot be overridden by general Rules of 1991. It is submitted that view of the Hon'ble Single Judge that seniority shall be determined by 1991 Rules being erroneous, the entire decision is vitiated. It is further submitted that the writ petitioner had declared in writing not to accept the promotion and District Judge having accepted the prayer of writ petitioner debarring him permanently for promotion by order dated 9.6.1994, the subsequent promotion of the writ petitioner in 1997-98 are Void and have to be ignored. It is submitted that the writ petitioner having once declined to accept the promotion, had no right to claim promotion and Hon'ble Single Judge has not correctly appreciated the consequence of declining promotion by the writ petitioner. LEARNED Counsel for the appellant further contended that criteria for promotion on the post of Sadar Munsarim by virtue of Rule 20 of 1947 rules being merit and the committee having found the appellant meritorious and granted him promotion did not commit any error. Sri Amit Sthalekar, learned counsel for the High Court in Appeal No. 287 of 2007 confined his submissions with regard to applicability of relevant Rules for determination of seniority of ministerial staffs of the subordinate Courts. Sri Sthalekar submitted that determination of seniority of the ministerial staffs of the subordinate Court shall be governed by 1947 Rules and 1991 Rules have no application with regard to determination of seniority. It is submitted that the High Court on administrative side has also taken the same view and had issued Circular dated 24.5.1996 that seniority of the ministerial staffs of the subordinate Courts shall be determined in accordance with 1947 Rules and not by 1991 Rules. Sri Sthalekar submitted that the High Court having never approved the 1991 Rules, they are not applicable. Reliance has also been placed on provisions of Article 235 of the Constitution of India by Sri Sthalekar.;