- (1.) PRAFULLA C. Pant, J. By means of this petition, moved under Article 226 of the Constitution of India, writ of certiorari has been sought challenging the promotion order of respondents No. 3 and 4, who are alleged to be junior employees to the petitioners. Also, mandamus has been sought to prepare the seniority list of Group-Ill employees of the District Co-operative Bank, Almora.
(2.) BRIEF facts of the case, as narrated in the writ petition, are that the petitioners were appointed in the post of Clerk-cum-Cashier in the District Co-operative Bank between 1979 to 1983. Initially their appointments were made on daily wage basis (prior to respondents No. 3 and 4 who were also engaged in the same manner) and later considering their work and conduct they were given ad hoc appointment to the post and started getting regular pay scale. It is stated in the writ petition that service of the petitioners and respondents No. 3 and 4 were regularised by respondent No. 2 vide order dated 28-6- 1993 (copy Annexure-2 to the writ petition) and the names of the petitioners figured at serial Nos. 18 to 24 while that of respondent Nos. 3 and 4, figured at serial Nos. 25 and 27 i. e. below the petitioners. It is alleged that Rule 26 of U. P. Co-operative Societies Employees Service Regulations, 1975, provides that the seniority of the employees shall be determined on the basis of date of order of their substantive appointments in the category they are appointed and where two or more persons are appointed on the same date, in the order in which their names appear in the order of appointment. In the year 1995, a tentative seniority list was prepared and circulated by the bank in which the petitioner No. 7 (who was at serial No. 18, in the order by which his services were regularised), was placed at serial No. 32 while Sri Govind Singh Bisht (respondent No. 3, who was placed at serial No. 20 at the time of regularisation), was placed at serial No. 27 in the seniority list i. e. above the petitioners. The petitioners filed objections against the tentative seniority list. It is alleged by the petitioners in the writ petition that without considering their objections, the respondent No. 2 settled the seniority of Group C employees illegally against which the petitioners made a representation dated 1-12-1995 (copy Annexure-5 to the writ petition ). U. P. Co-operative Institutional Service Board, Lucknow, vide its order dated 27-7-1998, informed the bank that in view of the dispute regarding the seniority, the promotions proposed on the basis of the seniority list cannot be approved. Alleging that now respondent No. 2, has promoted 14 persons from Group III to Group II by means of an order passed in January, 2003, and included the names of respondents No. 3 and 4 in the promotion list who were junior to the petitioners. Meanwhile, on 6-2-2003, an advertisement has also been made for 12 vacancies of Group II post for direct recruitment, further affecting the petitioners as against respondents No. 3 and 4. Hence, this writ petition. Respondent No. 1 has filed the counter-affidavit in which it has been admitted that the petitioners were appointed on daily wage basis on the post of Clerk-cum-Cashier in the Co-operative Bank, Almora. It is stated in this counter-affidavit that in the year 1986, petitioner Navin Chandra Joshi and others, filed a writ petition No. 11538 of 1986, before the Allahabad High Court in which on 26-9-1986, following order was passed: "heard learned Counsel for the parties. Respondents are restrained from interfering with the functioning of petitioners as clerk-cum-cashier in the various branches of District Co-operative Bank Ltd. Almora, and retain them on their respective post. " In compliance of said order, the petitioners were appointed on the post of Clerk-cum-Cashier on ad hoc basis on 14-10- 1986. The respondents No. 3 and 4, joined their duties on the next day i. e. ; 15-10-1986 while the petitioners joined thereafter. It is admitted that the services of the petitioners and respondents No. 3 and 4 were regularised vide order dated 18-10-1995. It is also admitted that the tentative seniority list of Group III employees was circulated by the bank. Only petitioners No. 2, 4, 5, 6 and 7 made representation against the tentative seniority list and after considering their objections, a final seniority list was published on 8-11-1995. It is alleged in the counter-affidavit of respondent No. 1 that the petitioners have not challenged the final seniority list, published on 8-11-1995, and now after seven years they have no right to challenge the promotion based on said seniority list. Respondent No. 2, Secretary-cum-General Manager of District Co-operative Bank, Almora, has filed separate counter-affidavit in which also it has been admitted that the petitioners were appointed on daily wage basis as clerk-cum-cashier by the Bank between 1979 to 1983. Apprehending their disengagement, they filed Writ Petition No. 11538 of 1986, before the Allahabad High Court and in compliance of order dated 26-9-1986, passed by the Allahabad High Court, answering respondent gave ad hoc appointment to the petitioners on 14-10-1986 on the post of Clerk-cum-Cashier. Fresh joining was required to be given in pursuance of said order and petitioners gave their joining on different dates. Ad hoc appointments of the petitioners and respondents No. 3 and 4 are admitted to have been regularised vide order dated 28-6-1993. It is stated by respondent No. 2 also that on 18-10-1995, a tentative list of Group III employees was circulated and objections were invited. It is stated that only petitioners No. 2, 4, 5, 6 and 7 filed their objections and after considering the same final seniority list was published on 8-11-1995. The impugned promotions are said to have been made on the basis of said final seniority list.
(3.) A separate counter-affidavit has been filed on behalf of respondents No. 3 and 4, by respondent No. 3, in which it has been admitted that petitioners as well as the answering respondents were appointed on ad hoc basis vide order dated 14-10-1986, in compliance of the interim order dated 26-9-1986, passed in Writ Petition No. 11538 of 1986. It is further stated that respondents No. 3 and 4, joined their duties on 15-10-1986 while the petitioners joined on 16-10-1986 and thereafter. It is admitted that regularization of the petitioners and respondents No. 3 and 4 was made vide order dated 28-6-1993. It is alleged by these respondents also that the seniority list was finalized on 8-11-1995 and the petitioners did not challenge the same. It is stated by the answering respondents that the regularization order dated 28-6-1993, did not contain the names in order of seniority. And merely on the basis of order of names mentioned in the regularisation order, the petitioners cannot be said to be senior to the answering respondents. Heard learned Counsel for the parties and perused the record.;