- (1.) AMITAVA Lala, J. All the writ petitions are similarly placed and as such connected with each other. The judgment and order to be passed hereunder will have binding effect upon all the writ petitions.
(2.) THE dispute is in respect of quashing the recommendations made by the Departmental Promotion Committee dated 20th/21st December, 2005 for promotion to the post of U. P. Civil Service (Executive Branch) from amongst the Tahsildars and/or quashing the select list dated 10th January, 2006 issued by the selection committee. Admittedly, the panel of promotees was prepared by the State as per seniority. Such panel was sent to the Uttar Pradesh Public Service Commission for the purpose of selection by them on merit which was also done. It is further admitted position that previously as per the Uttar Pradesh Civil Service (Executive Branch) Rules, 1982, 33. 33% quota was to be reserved for departmental promotees, which was enhanced upto 40% and now it is enhanced upto 50%. The petitioners' contention is that the promotion cannot be clubbed together for the years 2001-2005 to include in the list of 50% amongst departmental promotee but will be made on year to year basis. According to Mr. Ashok Khare, learned Senior Counsel appearing in support of the writ petitions with the able assistance of their respective juniors, that under Rule 3 (j) of U. P. Civil Service (Executive Branch) Rules, 1982, "year of recruitment" means the period of twelve months commencing from the first day of July of a calendar year. As per Rule 5 of the said Rules, source of recruitment will be of two types: (i) by direct recruitment on the result of a competitive examination conducted by the Commission; (ii) by promotion from amongst the permanent Tehsildars. In the second proviso to Rule 5 (1) the Naib-Tahsildars approved for temporary vacancies in the Tahsildar service will be appointed to the service only after Naib-Tahsildars approved for permanent vacancies in Tahsildars service have either been appointed against the aforesaid temporary vacancies in the service or have, for reasons to be recorded in writing, been found to be unsuitable for such appointment, provided also that the recruitment shall be so arranged that as far as may be 33. 33% post in the cadre are held by the promotees and the rest by direct recruits. All the petitioners have been confined on the post of Tehsildars. They belong to general category. Rules 16 of the said Rules speaks about recruitment by promotion as follows: "16. Recruitment by promotion.- Recruitment by promotion to the ordinary grade shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, as amended from time to time. "
(3.) WE have come to know from the submissions of both the contesting parties that the selection in respect of direct recruit is being made year to year basis. The apprehension of the petitioners is that if for the direct recruit only the process is followed regularly leaving aside the departmental promotee, then there would be possibility of suppression by the direct recruit over and above the departmental promotees. Clubbing of the years is against the intention of the legislature. The respondents including the State vehemently opposed the submissions of the learned Counsel appearing for the petitioners. Mr. K. S. Kushwaha, learned Standing Counsel, contended that relevant rule does not provide that recruitment shall be arranged on year to year basis. The recruitment will be arranged as per the percentage in the cadre. As on 01st February, 2004 working strength was 1082. Amongst those candidates, as per the seniority, a combined list was prepared for departmental promotee and direct recruit as per the seniority. Presently, 54 posts are to be filled up. From the rejoinder affidavit filed by the petitioners themselves in Civil Misc. Writ Petition No. 3728 of 2006 it appears that in the examination of year 2001 a total number of 9 vacancies were filled up by direct recruitment while 15 posts of Deputy Collector were filled up in the examination for the year 2002 and 19 posts were filled up in pursuance of the examination of the year 2004. Thus, 43 posts of Deputy Collectors have been filled up by direct recruitment in the above years and keeping in view that 50% posts are reserved to be filled up by promotion, a corresponding number of posts were in existence for promotion purposes. In the said affidavit it is stated that the vacancies arose in different years by way of retirement or death. The present dispute is only for the year 2004-05, therefore, the seniority list of the year 2004-05 is to be taken note. Mr. Khare added that as per the Uttar Pradesh Civil Service (Executive Branch) (Fifth Amendment) Rules, 1997 a proviso is substituted as against Rule 5 that "provided also that the recruitment shall be so arranged that with effect from the commencement of the Uttar Pradesh Civil Service (Executive Branch) (Fifth Amendment) Rules, 1997, as far as may be, 40% posts in the cadre are held by the promotees selected by the commission and with effect from the first day of July, 1999, 50% posts in the cadre are held by the promotees selected by the Commission. " The words `as far as may be' and the word `held' are holding some useful meaning. There should be a fair reading of the rules by the State.;