U.P. SECRETARIAT U.D.A. ASSOCIATION THROUGH ITS

JOINT SECRETARY, G.C. SRIVASTAVA AND ORS.

STATE OF UTTAR PRADESH AND ORS.

JANUARY 27, 1997

(K. RAMASWAMY AND G.T. NANAVATI, JJ.]

S e1vice Law :

C U.P. Secretariat Services--Upper Division Clerk-!11ter-se seni01ity betwee11 direct recntits and promotees-Held: Appointme11ts made in officiating capacity against vaca11cies reserved for direct recntitment though no direct recntitment had take11 place-He11ce not according to Rules a11d within quoter-Direct recntit to be treated as such from date 011 which he actually joins the service though vacancies did exist prior to that-Consequently D promotees also •equired to be fitted into the sovice from the date when they

are entitled to fitment in accorda11ce with quota a11d rota presclibed under the Rules.

Direct Rt?crnit Class II Enginee1ing Officers' Association v. State of E Maharashtra & Ors., [1990] 2 sec 715, followed.

CIVIL APPELLATE JURISDICT-ION : Special Leave Petition (C) No. 25086 of 1996.

From the Judgment and Order dated 2.7.96 of the Allahabad High Court in W.P. No. 6200 of 1993.

Gopal Subramaniam, R.N. Keshwani and Santosh Kumar for the Petitioners.

AK.. Srivastava for the Respondents.

The following Order of the Court was delivered :

This special leave petition has been filed against the order of the Division Bench of the Allahabad High Court, made on July 2, 1996 in Writ Petition No. 6200/93. When the direct recruits had filed the special leave H petition, this Court by order dated November 20, 1996 dismissed the same. 586

...

U.P. SECRETARIAT U.D.A. ASSON. v. STATE 587

~ Shri Gopal Subramaniam, learned. senior counsel for the petitioners, who A are now promotee U.D.C. in the U.P. Secretariat Services contends that the learned Judges have given their reasoning at pages 58 and 59 thus :

"from the aforesaid decisions of Hon'ble Supreme Court, it is evident that the initial appointment of the promotees on officiating B ba;; is were not in accordance with the Rules, 1942, rather it de hors the rules. Contention of the petitioner that the quota as envisaged in Rule 21 of Rules 1942, has broken_down or collapsed simply for the reason that due to certain administrative difficulties neither the selection for direct recruit nor the selection by promotion against the vacancies took place in the selection years with effect from 1971 to 1978, and hence according to the decision of Hon'ble Supreme Court in O.P. Singh v. Union of India, [1994] 4 SCC 450

and Direct Recrnit Class II Officers' Case (supra), the petitioners

(promotees) should not be pushed down before the appointees from the other sources inducted into the service one later date D (proposition E of the Direct Recrnit Class II case (supra), appears to be misconceived. Petitioners were not at all prejudiced because of non-selection during the aforesaid period for the reasons that the direct recruitment also did not take place during the aforesaid period and that the petitioners in accordance with the seniority on the post of L.D .A. were given officiating promotion on the post of U .D .A. against the vacancies existing in their quota or otherwise.

In view of the aforesaid position, it cannot be said that the quota rule, as envisaged, under Rule 21 of Rules 1942 has collapsed down."

The above reasoning is not correct for the nason that during the relevant. period neither direct recruitment nor promotions were made in accordance with the rules. As a consequence, since the promotees have been continuously officiating on the posts they are entitled to be put back

to the date from which they have been continuously officiating on the G ground that rule of quota has broken down. We find no force in the contention. From the judgment of the Constitution bench of this Coutt in Direct Recrnit Class II Engineering Officers' Association v. State of Maharashtra & Ors., (1990] 2 SCC 715, it is now settled law that merely because temporary appointment or promotion came to be made, seniority cannot be counted from the date of officiation except when the appoint - H

SUPREME COURT REPORTS

[1997] 1 S.C.R.

A ment was made in accordance with rules. Though appointment is tem- +- porary, if it was made in accordance with rules and to a substantive vacancy, seniority will be counted from the date of temporary promotion.

Necessarily, the quota and rota required to be maintained so as to give - effect to the object envisaged under the Rules. Mere inaction cannot be

B made the ground to contend that the quota rule was broken down. It is not in dispute that appointments have been made in officiating capacity against the vacancies reserved for direct recruitment though no recruitment had taken place. They are not according to Rules and within quota. The ,.

Division Bench, therefore, rightly held that the direct recruit is to be treated from the date on which he actually joined the service, though c vacancies did exist prior to that. As a consequence, the promotees are also required to be fitted into the service from the date when they are entitled to fitment in accordance with quota and rota prescribed under Rules. The Division Bench, therefore, , has rightly declined to grant the relief to the petitioners.

D The special leave petition is accordingly dismissed. .,..

G.N.

Petition dismissed.