- (1.) Heard Sri V.K. Srivastava, learned Counsel for the petitioner and Sri I.M Pandey for opposite party No. 4 and learned Standing Counsel for official opposite parties. By means of this writ petition the petitioner has challenged the judgment dated 17.12.2014 passed by the U.P. Public Service Tribunal, Lucknow in Claim Petition No. 687 of 2006 filed by opposite party No. 4, Ram Shanker Dwivedi. The post of State Radio Officer is a promotional post as per Rule 5 (iii) of the U.P. Police Radio Service Rules, 1979. However, the proviso to the said rule provides that if no suitable person is available for promotion, the post may be filled by direct recruitment. The petitioner herein was appointed as State Radio Officer through U.P. Public Service Commission by way of direct recruitment vide order dated 13.11.1998 under the proviso to the aforesaid Rule whereas opposite party No. 4 was promoted against the said post as per Rules on 18.11.1998. The opposite party No. 4 raised a seniority dispute before the authorities claiming placement in the seniority list above the petitioner, relying upon the provisions contained in Rule 22 of the Service Rules of 1979 as also Rule 8(3) of the Seniority Rules, 1991, on the ground that the appointment on the in question having been made by way of direct recruitment as well as promotion in the relevant recruitment year the opposite parties ought to have prepared a combined list under Rule 17 of the Service Rules 1979 by taking the names of the candidates in such a manner that the prescribed percentage of direct recruitment and promotion is maintained from the list prepared under Rules 15 and 16, the first name being from the list prepared under Rule 16 i.e. of a promotee. He relied upon Rule 18 of the Service Rules, 1979 which provides that the appointing authority shall make appointment by taking the candidates in the order they stand in the list prepared under Rules 15, 16 and 17, as the case may be. He also relied upon Rule 22 which provides that seniority in any category of posts in the service shall be determined from the date of order of substantive appointment and if two or more persons are appointed together, from the order in which the names are arranged in the appointment order. His claim was rejected by the opposite parties vide order dated 18.5.2006. Being aggrieved he filed a claim petition bearing No. 687 of 2006 which has been allowed vide judgment dated 17.12.2014. It is this judgment which is under challenge before this Court. The contention of learned Counsel for the petitioner is that the Tribunal has misdirected itself by allowing the claim of opposite party No. 4 on the ground that his selection and appointment was against the vacancy of 1995-96 and there was no explanation with the opposite parties as to why the appointment order of opposite party No. 4 was issued late than the appointment order issued to the petitioner on 13.11.1998. He relied upon a decision of the Supreme Court in the case of Pawan Pratap Singh v. Reevan Singh, 2011 3 SCC 267, to contend that seniority is not to be reckoned from the date of vacancy rather from the date of substantive appointment, as, in this case the date of substantive appointment of the petitioner was prior to the date of substantive appointment of opposite party No. 4 therefore, the Tribunal has erred in issuing a direction to the opposite parties to re-determine the seniority in the light of the observations made by it, which is bound to result in his placement over the petitioner.
(2.) On the other hand learned Counsel for opposite party No. 4 contended firstly that there were only 5 posts in the cadre of Radio Officer, therefore, the petitioner could not have been given the benefit of reservation in view of the various decisions of the Supreme Court, one of them being R-S. Garg v State of U.P. and others, 2006 6 SCC 430, and the Full Bench decision of this Court in the case of Hira Lal v. State of U.P. and others, 2010 3 UPLBEC 1761, by which the law has been clarified, based on already existing provisions contained in the Reservation Act, 1994. He further contended that the official opposite parties while rejecting his claim vide order dated 18 5 2006 had not considered the provisions of Rules 5, 16, 17, 18 and 22 of the Service Rules, 1979 nor Rule 8(3) of the U.P. Government Servants Seniority Rules, 1991 and had rejected the claim in an arbitrary manner based on reasons which were not germane in the eyes of law. He relied upon a Division Bench decision of this Court dated 12.9.2012 passed in Writ Petition No. 10 (SB) of 2000 Syed Zia Abbas Razvi and others v. State of U.P, and others and connected matters.
(3.) We have heard the contentions of the rival parties and perused the record.;