IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII Rule 32 (2) (b) Description of the Case Writ Petition No. 304 of 2005 (S/B) Date of Decision :- 29.03.2007 A.F.R. (Approved for reporting) Not approved for reporting Date : 29.03.2007 Initial of Judge. Note :- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. - 1 - HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 304 of 2005 (S/B) J.S. Dobal S/o late Sri Kesar Singh Dobal Presently posted as Principal/Joint Director Government Polytechnic (Technical Education) Uttaranchal, Srinagar District Pauri Garhwal …. Petitioner Versus 1. Uttaranchal Public Service Tribunal, Nainital Bench, Nainital 2. State of Uttaranchal through Principal Secretary Technical Education, Human Resource Devt. Department Uttaranchal, Dehradun 3. Additional Chief Secretary, Technical Education Dehradun, District Dehradun 4. Director, Directorate of Technical Education Uttaranchal Camp, Phase-3, 257 Basant vihar Dehradun, District Dehradun 5. Sri A.S. Bisht, Principal, Government Polytechnic Kashipur District U.S. Nagar …. Respondents Delivery of Judgment :- 29th March, 2007 Mr. Rakesh Thapliyal, learned counsel for petitioner. Mr. Subhash Upadhyaya, learned Standing Counsel for the respondent nos. 1 to 4. Mr. V.K. Bisht, senior Advocate with Miss. Sangita Miyan, learned counsel for respondent no. 5. Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. Per:- Hon’ble J.C.S. Rawat, J. 1. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has sought the following reliefs:- (i) issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 16.11.2005 (contained in Annexure No. 1 to the petition) passed by the Uttaranchal Public Service Tribunal, Nainital Bench, Nainital, Uttaranchal in Claim Petition, No.07/N.B./2005 J.S. Dobal Vs. State of Uttaranchal through Principal - 2 - Secretary, Technical Education, Human Resource Development Dept., Uttaranchal Dehradun and others as well as the order dated 17.05.2004 (contained in Annexure- 16A) passed by respondent no. 3. (ii) Issue any suitable writ, order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Award the cost of the petition to the petitioner. 2. The petitioner was initially appointed as Lecturer (Chemistry) on 01.06.1978 which was treated as Class- II Gazetted post in the pay scale of Rs. 550-1200/- in the Government Polytechnic. The respondent no. 5-Sri A. S. Bisht was appointed as Senior Lecturer/Head of the Department (H.O.D.) in Nainital Polytechnic, which was a private Government Aided Institution managed under the Societies Registration Act, 1960. The respondent no.5 was appointed in the pay scale of Rs. 1000-1900/- w.e.f. 01.07.1980. In the year 1987, the Government to decided to take over Nainital Polytechnic according to the scheme of merger envisaged by the Government Order. It was contemplated in the Government Order that the employees of the Nainital Polytechnic, Nainital would be adjusted in the Government Service against the posts in various cadres created for the purpose and their pay shall also be protected. The seniority of the employees of the Nainital Polytechnic, Nainital as against the existing employees of the Technical Education Department was to be determined according to the Government Order to be subsequently issued by the Government. In pursuance of this Government Order, Nainital Polytechnic was taken over by the Government and employees of the Nainital Polytechnic became Government Servants under the relevant service rules. - 3 - 3. In the year 1980, Government framed rules for regulating the service of officers working in the Technical Education Department and the same is known as U.P. Technical Education Gazetted Officers Service Rules, 1990 which were subsequently amended in the year 1998. These rules undisputedly govern the services of the petitioner and the respondent no.5. In the year 1991, the cadre-wise seniority list of the Technical Education Department was issued in relation to the regularly appointed employees. In that list, the name of respondent no.5 was shown in the cadre of H.O.D. Commercial Practice in the pay scale of Rs.3000- 4500/-. He had been shown as regularly appointed from 12.03.1987. The name of the petitioner had been shown in the list of Lecturers (non-engineering) in the pay scale of Rs.2200-4000/-. Subsequently, on 13.05.1998 a seniority list was issued in which the respondent no.5 had been shown to be Class-I Officer in the Technical Education Department, Hill Cadre holding the post of H.O.D., Commercial Practice in Government Polytechnic, Nainital. Similarly, a list of Class II Officers of the Technical Education Department was issued vide G.O. No.2111/16-Pra.Shi.2-12(E)/93 dated 15.07.1997 in which the petitioner was placed at Serial no.10 holding the post of Lecturer (Chemistry) in the Government polytechnic, Kashipur. 4. In the year 1999, the promotion to the cadre of Principal of Government Polytechnic were taken up by the department. For this purpose, the eligibility lists were prepared according to the provisions of U.P. Technical Education Gazetted Officers Service Rules, 1990 as amended in the year 1998, for consideration of the Departmental Promotion Committee. In the - 4 - eligibility list so prepare and sent to the Public Service Commission, the name of the petitioner appeared at serial no.1 while the name of respondent no.5 was shown at serial no.6. In pursuance of seniority list so approved, the petitioner as well as other officers were promoted on the post of Principal vide order dated 22.04.1999 passed by the Technical Education Department. The petitioner as well as the respondent no.5 took over the post of Principal in the Government Polytechnic on 23.04.1999 and have continued to serve. The controversy arose for the first time in the year 2002, when the State of Uttarakhand issued an interim seniority list of Principals of Government Polytechnic in the Technical Education Department vide order dated 03.07.2002 in which the name of the petitioner was shown at serial no.1 while the name of respondent no.5 was shown at serial no.3. The objections against this list were invited as per rules. The respondent no.5 challenge the interim seniority list by means of a representation alleging therein that he was substantively appointed in the pay scale of Rs. 3000-4000/- as Class I Officer on the post of Head of the Department (H.O.D.) w.e.f. 12.03.1987 and the officers placed at serial no.1 & 2 in the interim seniority list were appointed as Class II officers and therefore they could never be senior to him under any rules. This representation was considered by the Government and on 30.05.2003 a final seniority list was issued in which the respondent no.5 was placed at serial no.1. 5. Feeling aggrieved by the said seniority list, the petitioner preferred a writ petition No.319(SB)/2003 before this Court. Vide order dated 22.09.2003 the writ petition was disposed of with the direction to decide the - 5 - representation of the petitioner after affording opportunity of hearing. The department subsequently passed an order dated 07.10.2003 whereby the petitioner’s representation was rejected. Thereafter, the department passed an order dated 17.05.2004 confirming the earlier order dated 07.10.2003. 6. Feeling aggrieved by this, the petitioner had filed a writ petition No.492/2003 (MB) before this Court and the said petition was disposed of with liberty to the petitioner to approach the Public Services Tribunal for redressal of his grievance. Thereafter, the petitioner filed a claim petition before the Public Services Tribunal, Nainital. 7. After hearing the parties, the Tribunal dismissed the claim petition of the petitioner vide impugned order dated 16.11.2003. Feeling aggrieved by this, the present writ petition has been filed before this Court. 8. Heard learned counsel for the parties and perused the record. 9. The main controversy involved in this writ petition is with regard to the fixation of seniority of the petitioner. It was contended on behalf of the petitioner that the Tribunal had erred in ignoring the Category III of Appendix-I of the U.P. Technical Education Gazetted Officer Service Rules, 1990 as amended time to time which provides that there is only one feeding cadre i.e. Lecturer and also erred in holding that there are two feeding cadre by ignoring the fact that the Head of the Department (H.O.D.) was to be given a notional weightage of 8 years. Therefore, the H.O.D. may be - 6 - kept at par to the Lecturer for promotion to the post of Principal/Joint Director. Learned counsel for the petitioner further contended that the Tribunal has erred in ignoring the illustration clause which clearly demonstrate that getting the promotion to the post of Joint Director/Principal the incumbent holding the post of H.O.D. would be given a notional weightage of eight years so that he may be treated to be appointed as Lecturer in the scale of Rs.2200-4000. It was further contended that there was only one feeding cadre i.e. Lecturer by given a notional benefit of eight years to the H.O.D. and he will be treated as Lecturer. It was further contended that in view of the above the respondent no.5 would be treated to be appointed as Lecturer on 12.03.1979 as he was appointed as H.O.D. on 12.03.1987. It was contended that the Tribunal had misinterpreted the Category III of appendix-I by holding that there are two feeding cadres. It was further contended that according to the illustration and note clause there is no doubt that there is only one feeding cadre and therefore there is no question of applicability of Rule 7 of the Uttar Pradesh Government Servants Seniority Rules, 1991 which is identical to Uttarakhand Government servants Seniority Rules, 2002 (hereinafter referred as ‘Seniority Rules’) 10. Learned counsel for the respondents refuted the contention and supported the judgment of the Tribunal. It was contended on behalf of the respondent no.5 that the contentions of the petitioner are totally based on the wrong assumption that there is only one feeding cadre i.e. Lecturer for the post of Principal/Joint Director. It was further contended that for promotion to the post of Principal/Joint Director there are more than one feeding - 7 - cadre. It was further contended that the pay scales of H.O.D.s and the Lecturers are different. The pay scale of Lecturer is Rs.8000-13,500/- whereas the pay scale of H.O.D. is Rs. 10,000-15,200/-. The respondent no.5 was promoted from H.O.D. Class-I Officer having pay scale of Rs.10,000-15,200/- and the petitioner was promoted from Lecturer Class-II Officer having the pay scale of Rs.8000-13,500/-. 11. The sole controversy which has been raised for the decision of this Court is with regard to the fixation of the seniority of the petitioner. The relevant Rules which is a subject matter of the interpretation in this petition need to be scrutinized. The provisions of service Rules as provided in Appendix-I relating to Category III is quoted below:- Category Name of the post General Cadre Hill Cadre Source of Recruitment Scale of Pay in Rupees Perm anent Temp orary Total Prem anent Temp orary Total Category III (a) Joint Director (b) Principals of Government Polytechnics, Rural Polytechnics, Girls Polytechnics ….. 16 5 33 5 49 ….. 6 1 9 1 15 Twenty five percent posts by direct recruitment through the Commission and seventy five percent by promotion through the Commission from amongst substantively appointed officers of categories X and XII who have put in at least fifteen years service in the Pay Scale of Rs.8,000-13,500 or higher scale, if any, on the first day of the year of recruitment. Substantively appointed officers of the Categories VII and IX, who have been put in seven years, service as such on the first day of the year of recruitment and substantively appointed officers of categories IV and V, who have put in at least seven years service as such on the first day of the year of recruitment, shall also be eligible for promotion of these posts. 12,000-375- 16,500 Note:- Eligibility list for promotion to these posts will be prepared in accordance with the date of substantive appointment as Lecturers provided that - 8 - persons have been substantively appointed directly to posts in Categories VII and IX will be given notional weightage of eight years for the purposes of preparing eligibility list on seniority. Illustration:- An Officer appointed directly to the post in categories VII and IX on January 8, 1988 will be deemed to have been appointed in the pay scale of Rs.2200-4,000 on January 8, 1980 and so on. 12. Perusal of the aforesaid provision reveals that 25% posts of Principal of Government Polytechnics, Rural Polytechnics, Girls Polytechnics shall be filled up by direct recruitment through the Public Service Commission and 75% posts by promotion through the Public Service Commission from amongst substantively appointed officers of Categories X & XII who have put in at least fifteen years service in the pay scale of Rs.8,000-13,500/- or higher scale on the first day of the year of recruitment. It further provides that the substantively appointed officers of the Categories VII & IX, who have been recruited directly on such posts and who have put in seven years, the service on such on the first day of year of recruitment and substantively appointed officers of categories IV & V, who have put in at least 7 years service as such on the first day of the year of recruitment shall also be eligible for promotion to the post of Principal/Joint Director. - 9 - 13. Category X and XII has been defined in the said Rules, which is quoted below:- Category Name of the post General Cadre Hill Cadre Source of Recruitment Scale of Pay in Rupees Perm anent Temp orary Tot al Perm anent Temp orary Total Category X (a) Lecturer in Polytechnics (Engineering & Technical branches) (b) Principal / Head, Secondary Technical Schools (Dying in Cadre) (c) Foreman Auto 149 2 03 284 …. …. 433 ….. ….. 30 2 03 135 ….. ….. 165 ….. ….. Seventy five per cent posts by direct recruitment through the Commission. Twenty five per cent by promotion through the Commission from amongst substantively appointed Engineering Diploma holder Assistant Lecturers of the concerned branch who have put in at least fifteen years service on the first day of year of recruitment. For persons who are AMILE or TTTI Disploma Holders the experience required will be ten years. 12,000-375- 16,500 Category XII Lecturer (Non- Engineering subjects) in Polytechnics, Government Leather Institute and Northern Regional Institute of Printing Technology 72 70 142 19 35 54 Seventy five per cent posts in each subject by direct recruitment through the Commission. Twenty five per cent posts by promotion through the Commission from amongst substantively appointed Lecturers, Junior Lecturers, Instructors in tehpay scale of Rs.4500-7250 or in higher pay scale if any, who have put in at least fifteen years service in the Department on the first day of the year of recruitment. Four persons, who are post graduate in the subject, the experience required will be ten years. Engineering Diploma holder Assistant Lecturers of the concerned branch who have put in at least fifteen years service on the first day of year of recruitment. For persons who are AMILE or TTTI Disploma Holder the experience required will be ten years. 8,000-275- 13,500 Category VIII and IX is quoted below:- Category VIII Head of Department in the Northern Regional Institute of Printing Technology 2 ….. 2 ….. ….. ….. By Promotion through the Selection Committee from amongst substantively appointed lecturers (Printing Technology), Northern Regional Institute of Printing Technology of the subject who have put in at least five years service in the pay scale of Rs.8000-13,500 or higher pay scale, if any, on the first day of the year of the recruitment. 8,550-275- 14,600 - 10 - Category IX Head of Department in Non- Engineering subjects ….. 7 7 …… 1 1 By Promotion through the Selection Committee from amongst substantively appointed Officers of category XII, who have put in at least five years service as Lecturer in the Department, in relevant subject on the first day of the year of recruitment. 10,000-325- 15,200 14. The above mentioned provisions clearly provide that the Lecturers, H.O.D.s and the principal of Northern Regional Institute of Printing Technology & Government Leather Institute are eligible to be considered for promotion against 75% posts of Principal for the Government Polytechnics. There is no doubt that before their promotion to the cadre of Principal, the petitioner was a Lecturer and the respondent no.5 was the H.O.D. There is no dispute that the pay scale of H.O.D. was higher than that of Lecturer. It is revealed from the record that the pay scale of Lecturer is Rs.8000- 13,500/- and the pay scale of H.O.D. is Rs.10,000- 15,200. It is also not disputed that vide Government Order dated 22.04.1999 the petitioner was as well as the respondent no.5 were promoted to the post of Principal in the Government Polytechnics. The petitioner was placed at serial no.1 whereas the respondent no.5 was placed at serial no.6. The said promotions were made on the recommendation of the U.P. Public Service Commission. After the creation of State of Uttarakhand, the Government issued a tentative seniority list of Principals on 03.07.2002 in which the name of the petitioner was placed at serial no.1 and the respondent no.5 was placed at serial no.3. The Government had also invited objections against the tentative seniority list dated 03.07.2002. The respondent no.5 preferred a representation before the Director, Technical Education alleging therein that according to Rule 7 of the ‘Seniority Rules’ he should be placed above the petitioner because - 11 - he was appointed directly on the post of H.O.D. having higher pay scale than the petitioner. It was further alleged therein that there are two different cadres i.e. Lecturer and the H.O.D. for promotion to the post of Principal. The pay scale of H.O.D. is higher than the pay scale of Lecturer, therefore, as per the proviso of Rule 7 of ‘Seniority Rules’ the respondent no.5 should have been treated as senior to the petitioner. The Director vide order dated 17.02.2003 referred the matter to the Government and the State Government vide order dated 30.05.2003 directed that there are two different feeding cadres for promotion to the post of Principal and both feeding cadres carry different pay scales. If the promotion is being made from different feeding cadres, then the proviso of Rule 7 of the Rules, 2002 would be applicable. It is provided in the said proviso that if the pay scale of two different feeding cadres are different the persons promoted from the feeding cadres having higher pay scale would be senior to the person who was having a lower pay scale. 15. It is pertinent to mention here that the petitioner has challenged before the Tribunal that the ‘Seniority Rules’ are not applicable in the present case. It was further challenged before the Tribunal that the services of the petitioner and respondent no.5 are governed by the U.P. Technical Education Gazetted Officer Rules, 1990. The Tribunal had come to the conclusion that ‘Seniority Rules’ have an overriding effect under Rule 3 of the said Rules. Therefore, the ‘Seniority Rules’ would be applicable where the earlier rules are inconsistent with it. Rules 7 of the ‘Seniority Rules’ are applicable in determining the seniority of the petitioner. The Government of Uttarakhand has enacted the identical - 12 - Rules in the year 2002. Rule 8 of ‘Seniority Rules’ deals with the seniority where appointment is made by promotion and direct recruitment. It provides that where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall be determined from the date of the order of their substantive appointments (25% by direct recruitment and 75% by promotion). According to Rule 8, the interse seniority of the persons appointed on the result of any one selection by promotion shall be as determined in accordance with the principles laid down in Rule 6 or 7 of ‘Seniority Rules,’ as the case may. Learned counsel for the petitioner did not dispute before us that the U.P. Government Servants Seniority Rules, 1991 (identical to the Uttaranchal Government Servants Seniority Rules, 2002) will apply in this case. The representation of the respondent no.5 was allowed and he was placed at serial no.1 senior to the petitioner. Rule 6 of the ‘Seniority Rules’ provides as under:- “6. Seniority where appointment by promotion only from a singly feeding cadre- where according to the service rules, appointments are to be made only by promotion from a singly feeding cadre, the seniority inter se of persons 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.” 16. It is evident that the intention behind framing such Rule was to fulfill the post of Principal by promoting the meritorious & substantively appointed Lecturers, - 13 - substantively appointed HODs and substantively appointed Principals of Northern Regional Institute of Printing Technology and Government Leather Institute. Perusal of the category III of Appendix-I makes it evident that the Rule contemplates conversion process of all kind of officers into the pay scale of Rs.8,000- 13,500/- in the specific manner only for the purpose of preparation of eligibility list. It does not put the substantively appointed Class-I officers to place them after the Class-II Officers having the pay scale of Rs.8,000-13,500/-. If the interpretation of the Rule submitted by the learned counsel for the petitioner is accepted it would lead to an illogical conclusion that the officers initially appointed in Class-I are placed below Class-II Officers permanently. It is a well settled position of law that if the construction of the provisions renders any confusion the court should draw the conclusion logically. It is also well settled that if two interpretations of any provisions are possible the one which leads to take logical conclusion should be adopted and the statute should be interpreted so that the possible hardship is avoided. The court should always interpret the provisions of enactment with the spirit and soul of the enactment and the court should not allow the adherence of the provision which leads to an absurdity and injustice. In view of the above, the purpose of giving notional weightage to the substantively appointed H.O.D. was to prepare the eligibility list for selection in absence of separate quota for the different feeding cadres. In absence of such weightage, the Lecturers will be ranked above the H.O.D.s in the eligibility list, as the length of service of the substantively appointed HODs will be much less than the length of service of the substantively appointed Lecturers. The purpose of - 14 - giving a notional weightage of eight year to the HODs was only to facilitate them at the time of consideration for promotion to the post of Principal. The seniority of such Principals would be governed by the relevant provisions of the ‘Seniority Rules’. It is also not disputed that the petitioner was a substantively appointed as Lecturer on 01.06.1978 and the respondent no.5 was appointed as H.O.D. on 12.03.1987. 17. As we have pointed out that the pay scale of the H.O.D. and the Lecturer are different. They are not of same cadre and they belong to different cadres. The Principals of Northern Regional Institute of Printing also form a separate feeding cadre for being promoted to the post of Principal. Is cannot be held that there was only one feeding category i.e. Lecturer for promotion to the post of Principal. We have pointed out that Rule 6 of the Seniority Rules, 2002 is only applicable in those cases where there is only one feeding cadres. 18. It was further contended that no quota has been prescribed in the said Appendix and the Rule for being