Full Judgment Text
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PETITIONER:
U.P. SECRETARIAT U.D.A. ASSOCIATIONTHROUGH ITS JOINT SECRETA
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & ORS.
DATE OF JUDGMENT: 27/01/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
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 petition, this
Court by order dated November 20, 1996 dismissed the same.
Shri Gopal Subramaniam, learned senior counsel for the
petitioners, who are now promote U.D.C. in the U.P.
Secretariat Service 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 promoters on
officiating basis 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. Singhl vs. Union of
India [(1994) 4 SCC 450] and Direct
Recruit 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 (proposition
E of the Direct Recruit Class II
case (supra), appears to be
misconceived. Petitioners, were not
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at all prejudiced because of non-
selection during the for said
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 reason 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 ground that rule of quota has broken down. We find no
force in the contention. From the judgment of the
Constitution bench of this Court in Direct Recruit Class II
Engineering Officers’ Association vs. 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 appointment was made in accordance with
rules. Though appointment is temporary, 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 require to be
maintained so as to give effect to the object envisaged
under the Rules. Mere inaction cannot be made the ground to
contend the that 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, has rightly held that the direct recruit is to be
treated from the date on which he actually joined the
service, though 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 prescribed under the Rules.
The Division Bench, therefore, has rightly defined to grant
the relief to the petitioners.
The special leave petition is accordingly dismissed.