- (1.) DISPUTE of seniority and consequential promotion is recurring cause of dispute amongst Government servants and the present case also raises a similar dispute.
(2.) THE facts giving rise to the present writ petition, in brief, are, that petitioner, Brij Bihari Lal after selection in competitive examination was appointed on the post of Lower Division Assistant (hereinafter referred to as LDA) by order dated 14th October, 1972. In pursuance thereof he joined on 1-11- 1972. He was confirmed on the said post on 1st April, 1974. THE next grade, for which the incumbents working as LDA were entitled to be considered for promotion, was Upper Division Assistant (hereinafter referred to as UDA ). THE conditions of service and recruitment in the said post were governed by U. P. Public Service Commission Staff (Conditions of Service) Regulations, 1942 (hereinafter referred to as 1942 Regulations ). Regulation 5, Item A, sub-regulation (4) of 1942 Regulations, as amended by U. P. Public Service Commission Staff (Conditions of Service) (Amendment) Regulations, 1971 published on 1st December, 1971 provided that the post of UDA would be filled in the following manner : "4. Upper Division Assistant.- By competitive examination to be conducted by the Commission which shall be open to the following : (i) Outsiders - (ii) Lower Division Assistants (including Treasurer, Accountant and Reference Clerks) who have rendered in the Commission's office a total period of not less than three years' service including officiating or temporary service as counted from the date of approval of the candidate for permanent appointment as on the first day of July of the year in which the examination is held : Provided that not more than one third of the vacancies occurring in a year shall be filled by promotion under cause (ii) above, if suitable candidates are available. " The aforesaid rule appears to have operated much harsh reducing chances of promotion of LDA to a great extent and thus the Commission took a decision on 5th August, 1972 for amendment of the said regulation and sent letter dated 14th March, 1973 to the Government proposing amendment in the aforesaid regulation. The aforesaid proposal remained pending before the Government for a long time and in the meantime direct recruitment on the post of UDA was held in 1973, 1978 and 1981 but no recruitment by promotion from LDA to UDA was made in accordance with Regulation 5, Item A sub- regulation (4 ). On the contrary, the Commission made officiating/ad hoc promotion of LDA to the post of UDA. The petitioner was promoted on ad hoc basis as UDA on 13th February, 1976. Later on Regulation 5, Item A, sub- regulation (4) was amended vide U. P. Public Service Commission Staff (Conditions of Service) (Sixth Amendment) Regulation, 1983 (hereinafter referred to as Sixth Amendment Regulation) published on 30th September, 1983 and it provides as under : " (4) Upper Division Assistants (i) Two third vacancies by competitive examination to be conducted by the Commission which shall be open to outsiders. (ii) One third vacancies by promotion from amongst the permanent Reference Clerks, Treasurer, Accountant and Lower Division Assistants of the office of the Public Service Commission : Provided that in special circumstances the Appointing Authority may, with the approval of the Governor fill up to 50% of the total number of vacancies in any particular year, by promotion as aforesaid. " It is also to be noticed that under Regulation 13 of 1942 Regulations, criteria for promotion was outstanding merit and where merits are equal, the seniority was required to be taken into account. It reads as under : "13. Promotion.- Recruitment by promotion to the various posts on the stall shall be made for outstanding merit, seniority being taken into account where merits are equal. "
(3.) THE aforesaid Regulation 13 was also amended by Sixth Amendment Rules vide notification dated 30th September, 1983 as under : "13 (1) Recruitment by promotion to the various posts, other than the posts of Upper Division Assistants, shall be made on the basis of merit, seniority being taken into account where merits are equal. (2) Recruitment by promotion to the posts of Upper Division Assistants shall be made on the basis of seniority subject to the rejection of the unfit for these purpose. A combined seniority list shall be prepared in which the names shall be arranged in the following orders : (a) Reference Clerks/treasurer/accountant, in order of the dates of their substantive appointment in their respective posts, if the date of substantive appointment of two or more persons in the same, the senior in age shall be places higher. (b) Lower Division Assistants, in order of their inter se seniority as such. " The Commission thereafter by order dated 7th April, 1984 regularised promotion of LDAs on the post of UDA against promotion quota and the name of the petitioner was mentioned at serial No. 6 against the vacancy of the recruitment year 1978. By another order dated 26th April, 1984 the petitioner and various other UDAs were confirmed on the said post. Respondent No. 2 issued order dated 26th September, 1988 notifying the date of substantive appointment and confirmation of various incumbents appointed/promoted on the post of UDA and the name of the petitioner was shown at serial No. 21 mentioning his date of substantive appointment and confirmation on the post of UDA as 1st July, 1980. On 29th September, 1988 respondents published a tentative seniority list based on the date of confirmation of UDA. The aforesaid seniority became subject-matter of dispute before this Court in Writ Petition Nos. 41499 of 1992 and 19777 of 1989. While the aforesaid matters were pending it appears that the petitioner was further promoted as Section Officer in officiating capacity by order dated 31st January, 1996 and was regularized on the said post by order dated 5th August, 1996 (Annexure-10 to the writ petition ). The writ petitions involving seniority dispute on the post of UDA came up for hearing on 26th May, 1997 and were disposed of finally by this Court with the following direction : "on the facts of the case I direct the petitioners and the respondents concerned to appear before the Chairman, U. P. Public Service Commission with certified copy of this order on 10-6-1997 alongwith any representation which they wish to make annexing any material which they rely on and the Chairman shall fix a date within three week thereafter and on that date he will hear the parties concerned and thereafter pass a speaking order within three weeks of the hearing in accordance with law dealing with the contentions of the parties. Since I have fixed a date before the chairman no separate notices will be sent to the parties. With these observations this petition and the connection petitions are finally disposed of. ";