Sabhajeet Yadav - (1.) -A short question which arises for consideration is that as to whether a senior person in the feeding cadre if promoted subsequent to his juniors on next higher post can regain his seniority as it was in feeding cadre on his such subsequent promotion?
(2.) THE brief facts leading to the case is that the petitioner was initially appointed on the post of Junior Clerk in the Office of Laghu Krishak Vikas Abhikaran, Gorakhpur on 14/15.11.1980 on regular basis after due process of selection, and by efflux of time the persons appointed as Junior Clerk in Laghu Krishak Vikas Abhikaran were redesignated as Junior Accounts Clerk on its redesignation as Zila Gramya Vikas Abhikaran. THEreafter the petitioner was given promotion to the next higher post of Assistant Accountant vide order dated 23.11.1990. Next promotion from the post of Assistant Accountant is the post of Accountant. A tentative seniority list for the post of Assistant Accountant was published on 13.6.1996 inviting objection against the said seniority list. THE petitioner moved his representation/ objection against the said tentative seniority list on 24.7.1996. THEreafter a final seniority list was published by the respondent vide covering letter dated 1.9.1998 (Anneuxre-6 to the writ petition). THEreafter on the basis of aforesaid seniority list promotion order from the post of Assistant Accountant to the post of Accountant was issued vide order dated 10.11.1999 (Annexure-7 of the writ petition) from the office of Commissioner, Gramya Vikas, U. P. Lucknow. THE petitioner moved a representation to the Commissioner, Gramya Vikas, U. P. Lucknow on 12.11.1999 and ultimately filed Civil Misc. Writ Petition No. 51833 of 1999 earlier to it. While deciding writ petition vide judgment and order dated 10.12.1999, this Court has directed the respondent to decide representation dated 12.11.1999 moved by the petitioner before respondent No. 2. In compliance of the aforesaid order passed by this Court, the Commissioner, Gramya Vikas, U. P. Lucknow respondent No. 2 vide impugned order dated 10.8.2000 (Annexure-10 to the writ petition) has rejected the aforesaid representation of the petitioner, hence this petition. Heard Sri A. P. Tewari, learned counsel for the petitioner and Sri Ravi Ranjan, learned standing counsel for respondents. The submission of learned counsel for the petitioner in nutshell is that the services of employees of Gramya Vikas Abhikaran is not regulated of any statutory rules rather it is regulated by G.O. issued from time to time. A such G.O. dated 17.3.1994 has been issued regulating the recruitment and other terms and conditions of services of employees of Gramya Vikas Abhikaran. Under para 6 of the said G.O., it is provided that seniority of the employees has to be determined in accordance with U. P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 1991 Rules) as amended from time to time. The learned counsel for the petitioner has also drawn attention of the Court, on the appendix of the said rules which enumerates various categories of post existing in Gramya Vikas Abhikaran including number of sanctioned post, appointing authority and source of recruitment on such posts. At Serial No. 10 of the appendix, the post of Junior Accounts Clerk is mentioned which is to be filled by the selection committee through direct recruitment. At Serial No. 9 of the said appendix, the post of Assistant Accountant has been mentioned which is liable to be filled by cent per cent promotion of Junior Accounts Clerk on the basis of seniority subject to rejection of unfit by departmental selection committee. At Serial No. 8 of the appendix, the post of Accountant is mentioned which is also liable to be filled by cent per cent promotion of Assistant Accountant on the basis of seniority subject to rejection of unfit by the departmental selection committee. Learned counsel for the petitioner has urged that from the aforesaid facts it is clear that the post of Junior Accounts Clerk is lowest post in the aforesaid hierarchy of service and liable to be filled through direct recruitment. The next higher promotional post is Assistant Accountant is liable to be filled only by promotion from a single feeding cadre of Junior Accounts Clerk, therefore, for determination of seniority on the post of Assistant Accountant Rule 6 of 1991 Rules is attracted and it is also revealed from the impugned seniority list dated 1.9.1998 that the seniority on the post of Assistant Accountant is determined under 1991 Rules as amended from time to time. Rule 6 of 1991 Rules provides that where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. Explanation appended to the said rules further provides that a person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. According to him, virtually it is seniority position in the feeding cadre which is decisive factor to determine the seniority position in the promotional cadre also instead of respective date of promotion on such promotional post.
(3.) SRI A. P. Tewari has further submitted that although impugned seniority list it has been drawn purporting it to be under 1991 Rules but in fact while determining the inter se seniority of members of service of Assistant Accountant the provisions of Rule 6 has not been adhered to and seniority list was not drawn in conformity of Rule 6 of 1991 Rules. While substantiating his submission he has placed reliance upon a chart shown in para 4 of the supplementary affidavit filed in the writ petition, whereby he has demonstrated that the persons mentioned therein, though promoted earlier to the petitioner on the post of Assistant Accountant but they were appointed on the post of feeding cadre i.e., Junior Accounts Clerk subsequent to the appointment of petitioner and they were junior to the petitioner on the said post of Junior Accounts Clerk. However, the petitioner was promoted on the post of Assistant Accountant subsequent to them but once he has been promoted on the post of Assistant Accountant even subsequently from the promotion of aforesaid persons he will regain his seniority position on the post of Assistant Accountant as it was in feeding cadre of Junior Accounts Clerk, and he should be treated to be senior to the aforesaid persons mentioned in para 4 of the supplementary affidavit on the post of Assistant Accountant. In my opinion, the submission of learned counsel for the petitioner appears to have some substance and requires to be examined. In order to appreciate the controversy, it would be useful to extract the provision of Rule 6 of 1991 Rules alongwith Explanation, as under : 6. Seniority where appointments by promotion only from a single feeding cadre.-Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of person so appointed shall be the same as it was in the feeding cadre. Explanation.-A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.;