Hari Nandan Sharan Bhatnagar Vs. S. N.
Dixit & ANR [1969] INSC 122 (25 April 1969)
25/04/1969 MITTER, G.K.
MITTER, G.K.
SHAH, J.C.
CITATION: 1970 AIR 40 1970 SCR Supl. (1) 421
1969 SCC (2) 245
CITATOR INFO:
RF 1975 SC1487 (16,17)
ACT:
U.P. Legislative Assembly Rules, r.
7-Appointment to post of Superintendent to be made from 'grade of superior
service assistants'-Grade', meaning of--Whether includes all persons working on
same scale of pay-Post of Superintendent a selection post.
HEADNOTE:
According to r. 7 of the United Provinces
Legislative Department Rules recruitment to the post of Superintendent shall be
made by promotion from 'the grade of superior service assistants in the Council
Department'. While regard was to be shown to seniority full authority was
reserved to appoint the assistant most fitted for the post and when no suitable
assistant was available recruitment might be made from outside.
The appellant entered the service of the U.P.
Legislative Assembly in 1954 through a competitive examination held by that
Public Service Commission of the State. In 1955 he was confirmed in the post of
Upper Division Assistant. In September, 1961 a vacancy occurred in the post of
a Superintendent in the Legislative Assembly Secretariat. The first respondent
who was working as a Treasurer in the same office in the same scale of pay as
the appellant was appointed to the said post by the Speaker of the Assembly.
Being aggrieved by the rejection of his claim
as the senior qualified superior service assistant the appellant filed a suit
in the court of the Munsif. The Munsif decreed the suit in his favour but the
District Judge in first appeal and the High Court in second appeal decided
against him.
According to the view taken by the High Court
the word 'grade' in r. 7 meant the scale of pay, and therefore all persons on
the same scale of pay as a superior service assistant were qualified for the
post of Superintendent in whichever department and under whatever designation
they might be working. In appeal by special leave before this court,
HELD : The post of Superintendent was a
selection post and seniority by itself was not a sufficient qualification. The
Speaker had taken into consideration the claims of the senior Upper Division
Assistants but under the rules his choice was not limited to the Upper Division
Assistants. He could consider the claims of others who were -in the same grade,
that is to say, enjoying the same scale of pay and pick out the person
considered by him to be qualified in all respects to perform the duties of a
Superintendent. The High Court bad rightly held that all officials of the U.P.
Legislative Assembly Secretariat holding
posts in the same scale of pay as Upper Division Assistants were eligible for
promotion to the post of Superintendent. [423H-424B] The danger that on the
above interpretation persons like book-binders and chauffeurs, if they were
getting a salary in the game grade as the senior service assistants would be
eligible for the post, was imaginary, for in making appointment to a selection
post the qualifications of a person would certainly have to be considered.
[424D] The fact that the appellant entered service through a competitive
examination while the respondent had failed to pass such a test was not one
SupCI/69-13 422 which could be taken into consideration by this Court because
the appointment was made after thorough scrutiny of representations received
and after consideration of the recommendation made by the Secretary of the
Legislative Department. [424E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1020 of 1966.
Appeal by special leave from the judgment and
order dated October 28, 1965 of the Allahabad High Court, Lucknow Bench in
Second Appeal No. 356 of 1964.
R. K. Garg and D. P. Singh, for the
appellant.
S. S. Shukla, for respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J. The only question in this appeal by special leave is, whether there
was -a violation of Rule 7 of the United Provinces Legislative Department Rules
in the appointment of the first respondent, S. N. Dixit, as the Superintendent
in the Legislative Assembly of the State of Uttar Pradesh in preference to the
appellant.
The facts are as follows. The appellant was
appointed as an Upper Division Assistant (formerly known as superior service
assistant) in the Legislative Assembly Secretariat Uttar Pradesh in 1954 on the
result of a competitive examination held by the Public Service Commission of
the State. He was confirmed in the post of Upper Division Assistant with effect
from June 16, 1955. In September 1961 a vacancy occurred in the post of a
Superintendent in the Legislative Assembly Secretariat. The first respondent
was working as a Treasurer in the same office. According to the -appellant, one
Uma Shanker was the senior Upper Division Assistant and he was immediately
after Uma Shanker in order of seniority.
In view of the fact that Uma Shanker had not
put in the minimum period of ten years' service as Upper Division Assistant the
Speaker of the Assembly did not think it fit to appoint him as Superintendent
but he ignored the appellant's claim to the post after Uma Shanker and
appointed Dixit in violation of the mandatory provisions of Rule 7. The said
Rule reads :
"Recruitment to the post of the
Superintendent shall be made by promotion from the grade of superior service
assistants in the Council Department. While due regard will be paid to
seniority, no assistant will be appointed to the post of Superintendent unless
he is considered qualified in all respects to perform the duties of a
Superintendent and full authority will be reserved to appoint the assistant
most fitted for the post. If, 423 however, no suitable assistant is -available
for promotion from amongst the grade of superior service assistants in the
Council Department, recruitment may, as a special case, be made from
outside." The appellant filed a suit in the court of the Munsif of South
Lucknow impleading the State of Uttar Pradesh, the Speaker, Legislative
Assembly of the State and Dixit as defendants therein and praying for a decree
for declaration that he should be deemed entitled to the post of Superintendent
in the Legislative Assembly with effect from 1st January 1962 and a further
declaration that the order dated October 7, 1961 appointing defendant No. 3 as
Superintendent was illegal and ultra vires. Written statements were filed on
behalf of the defendants. The learned Munsif held in the,plaintiff's favour.
His judgment was upheld in appeal by the Civil Judge Lucknow. The same was
reversed in Second Appeal to the High Court.
The order of the Speaker passed in October
1961 shows that he had considered the matter carefully before appointing Dixit
to the post. The contention of learned counsel for the appellant was 'that the
post could not be given to a person who was not a superior service Assistant
and the "grade of superior service assistants in the Council
Department" meant and included only those persons whose -names were born
on the roll of Upper Division Assistants.
Ex. 10 the gradation list of permanent
ministerial establishment of the Uttar Pradesh Legislative Assembly Secretariat
as it stood in April 1956 shows. that the scales of pay of Upper Division
Assistants, Translators, Reference Clerk, Treasurers, Stenographer to Secretary
and Assistant Librarian were the same, namely, Rs. 160-15-280-EB-20-400.
By an order of the Governor dated March 16,
1959 efficiency bars in the scales of pay of all the above posts were uniformly
altered and fixed at Rs. 220 and Rs. 300. The High Court took the view that
'grade' in R. 7 was suggestive of status and it did not refer to a class or a
particular class. According to the High Court "All officials working in
the same scale of pay in a department, although holding posts with different
designations, shall be deemed to be holding posts in the same grade, because
their rank in the same. department will be the same and equal to one
another." The High Court noted that the dictionary meaning of
"grade" was 'rank' position in scale, a class or position in a class
according to the value.' In our view the High Court came to the correct
conclusion in holding that the post was a selection post and seniority by
itself was not a sufficient qualification for promotion. The Speaker had to
take into consideration the claims of Senior.
424 Upper Division Assistants but under the
rules his choice was not limited to the Upper Division Assistants. He could
consider the claims of others who were in the same grade, that is to say,
enjoying the same scales of pay and pick out the person considered by him to be
qualified in all respects to perform the duties of a Superintendent. All
officials of the Legislative Assembly Secretariat holding posts in the same
scale of pay as Upper Division Assistants were eligible for promotion to the
post of the Superintendent Counsel argued that this would be an unreasonable
interpretation of the rule for in that case even a book-binder or a chauffeur
would have to be considered if their scales of pay were the same as those of
Upper Division Assistants. We do not think that anyone would place such an
absurd -construction on the rule. The appointing authority had to consider not
only the eligibility based on the grade (assuming that the rules unreasonably
place a chauffeur, a book-binder, an accountant and a special duty clerk in the
same grade) but also the qualification of the person appointed to perform the
duties of the Superintendent and a book-binder or a chauffeur would certainly
not be eligible for ,consideration. It was said that the educational
qualification of the appellant was much superior to that of Dixit and while the
appellant had joined service by passing a competitive examination held by the
Public Service Commission the first respondent had failed to pass such a test.
These are matters on which we can express no opinion.
As noted already, the -Appointment was made
after a thorough scrutiny of representations received and after consideration
of the recommendation made by the Secretary of the Legislative Department.
In the result the appeal is dismissed, but we
make no order as to costs.
G.C. Appeal dismissed.
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