D. K. Seth, J. - (1.) RULE 5E read with RULE 18 of Uttar Pradesh District Offices (Collectorates) Ministerial Service RULEs, 1980, has been sought to be declared ultra vires to Articles 14 and 16 of the Constitution, by means of this writ petition. The grounds for challenge Is that Stenographer Grade II and Grade I In Category F particularly to Stenographer Grade I are compelled to stagnate while their counterparts in Category D, were allowed promotional channel in Category-E, excluding the Stenographers.
(2.) DR. R. G. Padia, learned counsel for the petitioner contends that though the persons holding post in Category C in the scale of Rs. 250-425 being the same pay scale of Stenographer Grade II are allowed promotion to Category D in the scale of Rs. 280-460 while Stenographer Grade II allowed promotion to the Stenographer Grade I in the pay scale of Rs. 300-500 while those in Category-D have scope of further promotion available to Category-E In the scale of Rs. 450-700. Whereas no further promotional channel is open and available to Stenographer Grade I. He also points out that a person in Category A has promotional channel open in Category B, then Category C followed by Category D and E. In those cases, as many as there are four promotional channel higher up. Whereas Stenographer Grade I which may be filled up even by direct recruitment does not have any further scope for promotion, whereas Stenographer Grade II has only one channel to Stenographer Grade I. According to him even from Category C there are two promotional channels open, whereas Stenographer Grade II has only one promotional channel open to them. On these grounds he contends that Rule 5 Category E providing promotional scope only to Category D filled up by promotion from Category C excluding Category F is ultra vires. In as much as the persons holding the post of Category F have been allowed stagnate without further promotion which is wholly discriminatory. Similar question arose in the case of U. P. Government Stenographers Association and others v. State of U. P. and others. Writ Petition No. 5176 of 1987. disposed of on 20.7.1990 by a Division Bench of this Court, in which Rule 5 (1) of U. P; Food and Civil Supplies (Supply Branch) Subordinate Service Rules, 1980 (hereinafter referred to as Civil Supply Rules) so far as it excluded Stenographers from the field of eligibility to the post of Inspector, was declared ultra vires. Rule 5 (1) of U. P. Food and Civil Supplies (Supply Branch) Subordinate Service Rules, 1980, as It stood when the same was challenged in the said writ petition, was as follows : "5. Sources of recruitment.-(1) Recruitment to the various categories of posts in the Service shall be made from the following sources- (i) Inspector.-(a) By direct recruitment through the Commission ; and (b) By promotion through the Commission from amongst permanent Head Clerks/Permanent Accountants working in the Supply Branch of the Food and Civil Supplies Department. (ii) Senior Inspector.-(a) By direct recruitment through the Commission ; (b) By promotion through the Commission from amongst permanent Inspectors. (2) Recruitment to the cadres of Inspectors and Senior Inspectors shall be so arranged that as far as may be 50 per cent of the posts are held by direct recruitment and 50 per cent by persons appointed by promotion." Whereas Rule 5 of U. P. District Offices (Collectorate) Ministerial Service Rules (hereinafter referred to Collectorate Rules) so far as it is relevant for our purpose, being Category C, D, E and F, provides as under: Category 'C Enquiry clerk in the scale of By promotion from amongst the pay of Rs. 250-425. permanent incumbents of the posts mentioned in Category B. Category "D" Senior Assistant which term By promotion from amongst the includes Nazir, Judicial Assistant. permanent incumbents of the posts Revenue Assistant, Revenue Record mentioned in Category B and C Keeper, English Record Keeper, above. Chief Revenue Accountant and any other ministerial post in the scale of pay of Rs. 280-460. Note.-(1) For the purpose of promotion to the posts in Category D a combined seniority list shall be prepared by arranging the name of Enquiry clerk and thereafter the names of persons holding the posts in Category B in order of seniority. (2) Where a person is selected both for the posts in Category C and 'D' the post in Category 'D' shall be first offered to the person in order of seniority. Category E Office Superintendent (in the pay By promotion from amongst the scale of Rs. 450-700. permanent incumbents of the posts in Category D. Category F (1) Stenographer Grade II in the By direct recruitment, scale of Rs. 250-425. (ii) Stenographer, Grade I (in the By promotion from amongst the scale of Rs. 300-500. permanent Stenographers in the scale of Rs. 250-425. If suitable persons are not available for promotion the post may be filled up by direct recruitment."
(3.) A comparison of the said two Rules show that the said Civil Supplies Rule in Rule 5 provides for promotion to the Post of Inspector by direct recruitment and through promotion from amongst permanent Head Clerks, permanent Accountant, whereas promotion to the post of Senior Inspector was provided by direct recruitment and by promotion from amongst permanent Inspectors and the ratio was fixed at fifty per cent of each categories. For the purposes of promotion to the post of Inspectors and Senior Inspectors, Stenographers of the said department were thoroughly excluded. Similarly in the Collectorate Rules, Category E posts are to be filled up by promotion from amongst permanent incumbents of the posts in Category D excluding the Stenographers in Category F. Thus there appears to be an identity of commonness In the feature of both the Rules in the matter of exclusion of Stenographer for being promoted in the respective higher posts. After the judgment in the case of U. P. Government Stenographers Association (supra) declaring Rule 5 (1) as ultra vires was delivered, the Civil Supply Rules were amended by including the Stenographers as source of recruitment by promotion to the post of Inspectors in the following manner : "5. Sources of recruitment. -Recruitment to the various categories of posts in the Service shall be made from the following sources- (1) Inspector.-(a) Seventy five per cent by direct recruitment through the Commission; and (b) Twenty five per cent by promotion through Selection Committee from amongst substantively appointed such incumbents of the posts of the categories mentioned in clauses (i) and (ii) below as have completed five years of service on any one or more of the posts of the said categories on the first day of the year of recruitment - (I) Senior Assistant-Accountants, Senior Clerks, Accounts Clerk, and Junior Clerk/Typist to the extent of twenty per cent of the post; and (it) Stenographer-To the extent of five per cent of the posts. (iii) Senior Inspector-By promotion through Selection Committee from amongst substantively appointed Inspector who have completed at least five years service as such or the first day of the year of recruitment." ;