Ashok Kumar Shrivastava And Ors vs Ram Lal And Others

2. In order to appreciate the issues which arise in these appeals it is necessary to indicate some of the facts set out in the writ petitions.

3. At the relevant point of time in the U.P. Trade Tax Department there were 669 posts of Trade Tax Officers, Grade II. Out of the said 669 posts, about 502 posts belonged to the Direct Recruits quota, but in 1980 only 243 of the posts had been filled. The vacancy in respect of the remaining 259 posts were the result of the slow and long drawn out process of the U.P. Public Service Commission in conducting the U.P. Subordinate Service Examination.

7. The Special Secretary suggested that the proposal of the Commissioner, Trade Tax, could be placed before the Cabinet for its approval for conducting a Limited Departmental Examination. On 11.8.1986 a detailed proposal was also sent by the Commissioner, Sales Tax, for holding a Limited Departmental Examination from amongst permanent employees of the Department.

9. Pursuant to the aforesaid communication a Circular was issued by the Commissioner, Trade Tax, on 23.12.1986 whereby applications were invited for 97 posts from amongst the permanent employees in Grade C who had completed 7 years of service. In the Circular the posts to be filled up were described as temporary posts from the direct quota which would be converted into permanent posts in course of time. It was also mentioned that those who had been appointed as Trade Tax Officers, Grade II, pursuant to the requisition sent on 11.10.1982 would be senior to the 143 candidates whose select list had been made available by the Public Service Commission in September, 1986.

10. The two decisions taken by the Government on 11.12.86 and 23.12.86 were challenged by one Brijendra Bahadur Singh by way of Writ Petition No.456 of 1987. On 5.2.1987, while issuing notice on the said writ petition, the High Court also passed an interim order to the effect that it would be open to the respondents to make ad hoc appointments in the vacant posts of Sales Tax Officer, Grade II, but no permanent appointment was to be made in respect of 2/3rd of the total number of vacancies which were meant to be filled up directly through the Public Service Commission under the U.P. Sales Tax Officers Rules, 1977.

11. Consequent to the above, the State Government directed the Commissioner, Trade Tax, to include a condition in the appointment orders to be issued to the persons selected through the Limited Departmental Examination that in view of the aforesaid order of the High Court the appointment was being made on an ad hoc basis and would be subject to the result of Writ Petition No.456 of 1986. On 19.2.1987 a similar interim order was passed by the High Court in the Writ Petition filed by Jai Singh. Pursuant to the above direction, the persons who were selected through the Limited Departmental Examination were given appointment on 28.6.1987 and their appointment orders contained the condition that their appointment was ad hoc and would be subject to the result of the writ petitions pending before the High Court.

12. In 1990, one Mohd. Zaki Khan and some others filed a Writ Petition challenging the Government Order dated 11.12.1986 withdrawing the 97 posts from the purview of the Public Service Commission. The said writ petitioners were candidates who had appeared in the written examination conducted by the Public Service Commission pursuant to the advertisement published in 1985, but had failed to pass the examination. The case of the writ petitioners in the said writ petition was that while making a requisition for 33 posts, if 97 posts for which the Limited Departmental Examination was held had been included in the requisition, they too would have been selected. It was also their case that since the 97 posts had been filled up only on an ad hoc basis from the departmental candidates, they would continue to be available in 1988 when fresh examinations were held by the Public Service Commission. A prayer was accordingly made for a Mandamus to be issued to the Public Service Commission to fill up the said 97 posts also by regular candidates and since the Public Service Commission was, in any event, conducting the U.P. Subordinate Service Examination, the select list could be expanded to include recommendations for the 97 posts which had been filled up by the department on ad hoc/temporary basis.

13. The writ petition of Mohd. Zaki Khan and others was decided against the writ petitioners on the basis of the detailed correspondence between the Commissioner of Trade Tax and the Department, and between the Department and the Public Service Commission. The High Court ultimately came to the conclusion that the Government had valid and cogent reasons for taking out the 97 posts from the purview of the Public Service Commission. It was also held that since the matter had been decided by the Cabinet the Governor was bound to accept such advice. It was also held that since the said posts had been validly taken out from the purview of the Public Service Commission it was not open to the court to issue a Mandamus to the Public Service Commission to fill up the said posts which had gone out of the domain of the said Commission.

14. The said decision in the writ petition filed by Mohd. Zaki was delivered on 19.5.1996. A Special Leave Petition filed against the said decision was dismissed in limine by this Court on 19.9.1996.

23. Two writ petitions, namely, Writ Petition No.1778/2000 and Writ Petition No.2000/2000 were filed at Lucknow by Jugal Kishore Pandey and Rajendra Prasad, who had both been appointed in 1987. Another writ petition was filed by Ashok Kumar Shrivastava at Allahabad in which an interim order was passed staying the operation of the Government Order dated 22.9.2000 and 9.10.2000. In the meanwhile, pursuant to an application made under Clause 14 of the Amalgamation Order this Court transferred Writ Petition No.2787/2001 filed in Allahabad to Lucknow with a request to the Chief Justice of Allahabad High Court to constitute a Special Bench to hear all the writ petitions at an early date, and, if possible on a day to day basis. The matters then came up before the Division Bench of the Lucknow Bench of the Allahabad High Court for final disposal.

28. Mr. Rao also referred to the writ petition of Mohd. Zaki Khan and submitted that while dismissing the writ petition the High Court held that the State Government was fully empowered to withdraw the 97 posts from the control of the Public Service Commission. Mr. Rao submitted that the High Court had also held that once the 97 posts had been taken out of the purview of the Public Service Commission the State Government was free to fill up those posts after laying down norms consistent with the constitutional provisions and other related laws.

30. Mr. Rao referred to the writ petition filed by Brijender Bahadur Singh and others and the interim order passed therein on 5.2.1987. He also referred to the writ petition filed by Jai Singh and others, wherein also an interim order was passed on 19.2.1987. Mr. Rao urged that the effect of the interim orders was that the State Government was free to make appointments from the candidates selected through the Limited Departmental Examination, but such appointments were to be treated as ad hoc. As a result, in the appointment letters issued to the appointees of 1987, it was mentioned that the appointments were ad hoc. Mr. Rao, submitted that this was the stand taken by the State Government in the counter-affidavit filed on behalf of the State in the said two writ petitions, which were subsequently dismissed on 3.10.1996 and 6.5.1994, respectively.

32. The change in the stand of the State Government was thereafter challenged by Muneshwar Babu and others, who were 1987 appointees, in writ petition No.166/05 before the Allahabad High Court. They are some of the appellants in Civil Appeal No.4969 /2007.

37. Mr. Rao submitted that the intention of the State Government not to treat the 1987 appointees as having been appointed on an ad hoc basis would be evident from the fact that soon after the High Court dismissed the writ petition of Brijender Bahadur Singh, the State Government effected an amendment in Rule 3(j) and 3(l) of the Service Rules, with the intention of putting the controversy beyond the pale of challenge. Mr.Rao referred to the proviso to Rule 3(l), as amended in 1997, which provides that those officers who had been appointed pursuant to the Limited Departmental Examination held in 1987 would be deemed to have been substantively appointed. The High Court, according to Mr. Rao, had committed an error in holding, while interpreting the amended Rules, that the 1987 appointees were promotees and formed a different group.

81. In our view, notwithstanding the well-settled principle that an employees service is to be counted for seniority only after he is born in the cadre, in the facts of this case the 1987 appointees will have to be treated differently. Although, the State Government may have shifted its stand to the extent that the services rendered by the 1987 appointees till 1997 could not be counted for computing their seniority, as their initial appointment was ad hoc in nature, we are of the view that such a stand would lead to inequity in view of the expressed intention of the State Government in the earlier writ petitions.

85. We, accordingly, allow Civil Appeal Nos. 4968 of 2007 filed by Ashok Kumar Shrivastava and 63 others, Civil Appeal No.4969 of 2007 filed by Muneshwar Babu and Ashok Kumar Srivastava, as also Civil Appeal No.4970 preferred by Goverdhan Lal.

Consequently, Writ Petition No.1041(SB) of 1996 filed by Ram Lal and others, Writ Petition No.1295 (S/B) of 1997 filed by Vinod Gupta, Writ Petition No.1863 (S/B) of 1998 filed by Govardhan Lal are dismissed and the impugned order so far as it relates to the aforesaid writ petitions, is set aside.

86. Consequently, Writ petition No.1778 (S/B) of 2000 filed by Jugul Kishore, Writ Petition No.2000 (S/B) of 2000 filed by Rajendra Prasad, Writ Petition No.2787(S/B) of 2001 filed by Ashok Kumar Srivastava, Writ Petition No.1666 (S/B) of 2005 filed by Muneshwar Babu and another, and Writ Petition No.894 (S/B) of 1999 filed by Shiv Prasad Tewari and others are allowed. The concerned respondents are directed to treat the 1987 appointees who had been appointed on the basis of Limited Departmental Examination to have been substantially appointed at the time of their initial appointment in 1987 and to revise the seniority list pertaining to Trade Tax Officer, Grade II, on such basis.

All the three appeals are disposed of accordingly, but having regard to the peculiar circumstances the parties will bear their own costs.