Prafulla C. Pant, J.
1. By means of this Writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought quashing of order dated 30.4.2001 passed by the Director General, Medical Health and Family Welfare Services, whereby the representation of the petitioner has been rejected regarding his claim as to seniority vis-a-vis respondent Nos. 4 & 5.
2. Brief facts of the case, as narrated in the writ petition, are that the petitioner initially joined has services as a ward boy (Class IV) in the Medical and Health Department on 26.12.79 against a vacant post under orders of the Chief Medical Officer, Almora. The petitioner passed intermediate examination in the year 1980. Apart from this petitioner had knowledge of typing work and consequently he was doing practically clerical work under order dated 5.7.1985 (Copy Annexure-1 of the writ petition) of the Deputy Chief Medical Officer, Almora. On completion of 5 years of service in class IV category, the petitioner made representation for his promotion to the post of Junior Clerk in class III which was duly recommended (copy Annexures-3 & 4 to writ petition) by Deputy Chief Medical Officer, Almora, The Chief Medical Officer, Almora also recommended the petitioner's case for promotion. However, respondent No. 4 Shri Jagdish Chandra Sati and respondent No. 5 Shri Dan Singh Bisht were promoted to class HI and petitioner was allegedly discriminated and left out. It is further alleged in writ petition that respondent No. 4 actually joined services in class IV post only in the year 1984 and respondent No. 5 joined as class IV employee in year 1983. As such both of them were junior to the petitioner. Aggrieve by the promotion of respondent Nos. 4 & 5, the petitioner filed a claim petition No. 40/11/1990 before U.P Public Services Tribunal who disposed of the case on 28th January, 1991 (copy Annexure-6) where by the Tribunal observed that the promotion of the respondent Nos. 4 & 5 was in violation of the Government Orders and appointment from class IV to class III be made as per the Government Orders. The petitioner has annexed a copy of the Government Order No. 37/1-1968 personnel-2, dated 31.8.1982 as Annexure No. 7 to the writ petition. In compliance of the orders of the Tribunal a competitive examination was held on 8.3.1996 for promotion in which petitioner secured highest marks (copy of examination result Annexure-8 & 9) and got promoted to the post of class III but respondent Nos. 4 and 5 were neither called nor appeared in the examination and continued to enjoy their earlier promotions. Alleging that the promotion of the respondent Nos. 4 and 5 was illegal, the petitioner has claimed that he cannot be placed junior to them in the seniority list Junior Clerks. It appears that meanwhile, the respondent Nos. 4 and 5 were ordered to be reverted to class IV post but they succeeded in obtaining the orders from the Allahabad High Court by filing a writ petition regarding their continuance in service till the competitive test was held. A copy of the order dated 16,4.1991 passed by the Allahabad High Court is annexed as Annexure-10 to the writ petition. The petitioner, on being aggrieved by the rejection of his representation as to his seniority vis-a-vis respondent Nos. 4 and 5 have challenged the order of rejection through this writ petition.
3. A counter affidavit has been filed on behalf of respondent Nos. 1, 2 & 3 in which the appointment of petitioner on class IV post as a ward boy in the year 1979 has not been disputed. It is also not disputed that the petitioner was being given clerical work also but not with independent charge of the same. As to the recommendation for promotion of the petitioner in the year 1989, Chief Medical Officer had made so subject to the vacancy available. Regarding the promotion of the respondent No. 5 it has been stated in the counter affidavit that he was promoted after departmental examination/interview conducted by the Chief Medical Superintendent Base Hospital, Almora. It is further stated in the counter affidavit that since respondent Nos. 4 & 5 were to continue in the post of Class III after their promotion it was not felt necessary to call them for appearing in the examination. Lastly, it is stated in the counter affidavit filed on behalf of respondent Nos. 1, 2 & 3 that since respondent Nos. 4 & 5 are appointees on the posts of Junior Clerk of the years 1986 & 1989 respectively. The petitioner cannot be said to be senior to them as promoted only in the year 1996.
4. On behalf of the respondent No, 4 a separate counter affidavit has been filed by Shri Jagdish Chandra Sati in which more or less the same averments are made as mentioned earlier in the counter affidavit on behalf of respondent Nos. 1, 2 & 3. It is stated in the counter affidavit that respondent No. 4 was promoted as Store Keeper-cum-Clerk due to his experience and qualification in this regard. It is also stated in this counter affidavit that respondent No. 4 was not employed by the petitioner in the claim petition filed before the UP. Public Service Tribunal, as such the same has no affect in the services of the petitioner. Regarding reversion and obtaining order from the Allahabad High Court, it is stated in this counter affidavit that the respondent No. 4 was wrongly reverted due to which the. answering respondent had to approach the Court and obtain the order for his continuance in service.
5. I heard learned Counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit along with the Annexures annexed there to.
6. The short question for consideration before this Court is whether, the petitioner is wrongly denied his seniority vis-a-vis respondent Nos. 4 & 5 by order of rejection on his representation vide order dated 30.4.2001 passed by the respondent No. 2.
7. Admittedly, petitioner was initially appointed as ward boy (class IV) on 26.12.1979. It is also not disputed that the respondent Nos. 4 & 5 were appointed in the class IV post much after. the appointment of the petitioner. There is no dispute as to the fact that under the Government Orders the promotional quota from Group D post to Group C post was up to the extent of 15 percent, and it is also clear from the copy of the Government Order dated 31.8.1982 (copy Annexure-7 to writ petition) that five years experience was also necessary apart from being matriculation for said promotion. That being so, the promotion of respondent Nos. 4 & 5 before considering the case of the petitioner for promotion who was qualified as well as senior to said respondents cannot be said to be according to the rules. It is true that only the petitioner was promoted after clearing the departmental examination in the year 1996 only but his appointment was according to the rules and Government Orders. It is a settled principle of law that only if the appointments are made according to the rules, the person who is appointed earlier in the same cadre will certainly be entitled seniority over the persons appointed thereafter. Here, the question is of the seniority of a person appointed as per the Government Orders and rules against the persons appointed without compliance with the rules and Government Orders. In the opinion of this Court the persons who are found to have not been appointed as per the rules and Government Orders but only appointed earlier cannot claim seniority over the persons duly appointed. Neither respondent Nos. 1, 2 & 3 nor the respondent Nos. 4 & 5 have denied if respondents No. 4 & 5 were not promoted from class IV to class III. Learned Counsel for the petitioner submitted that the two respondents didn't even fulfill five years service on the date of their promotion as such they were not at all qualified for being promoted. On this learned Counsel for the respondent No. 4 and learned Standing Counsel made efforts to reply by submitting that the respondent Nos. 4 & 5 were appointed directly after facing through the examination and not through the 15 percent reserve quota for promotion of class IV to class III post. This submission is against the record. Respondent No. 4 has clearly in his counter affidavit in para Nos. 8 & 15 has stated that he was 'promoted'. It is not the case of the respondent that the respondent Nos. 4 & 5 were direct recruits who though peons came through open examination. Even in the para 7 in counter affidavit on behalf of respondent Nos. 1, 2 & 3, word 'Promoted' has been used for respondent No. 5. As such it cannot be said that they were directly recruited through an open examination. None on behalf of the respondents could show me from the record if they had completed five years service on the date when they were promoted in class III.
8. The judgment and order dated 16.4.1991 (copy Annexure-10) passed in Writ Petition No. Nil of 1991 filed by respondent No. 4, under which respondent Nos. 4 & 5 appear to be continuing in service reads as under':-
'The contention of the petitioner is that he was appointed as Class IV employee on 5.3.1984 and then he was promoted as Store Keeper-cum- Clerk in the Civil Hospital, Rani Khet, Almora on 21.5.1986 on the basis of service record, such promotion was challenged in the Claim Petition No. 40/11/1990 before the Service Tribunal without impleading the petitioner. By the order dated 28.1.1991 the Tribunal found that no promotion to the aforesaid post could have been made without competitive test arc in valid.
Immediately after the pronouncement of the judgment of the Tribunal, the petitioner was reverted to his original post though there was no such direction by the Tribunal and that could not be because the petitioner is not a party before the Tribunal.
The only contention of the petitioner is that the competitive test which is necessary under the Law may be held as directed by the Tribunal but the petitioner may not be reverted pursuant to the impugned order dated 25.2.1991 Annexure 5 to the writ petition until the competitive test is held.
If no opportunity as averred by the petitioner was given to him to before the impugned order was passed, he will continue in service till a competitive test as directed by the Tribunal, is held or till he is legally reverted. The writ petition is finally disposed of with the aforesaid direction.
Dated. 16.4.1991
Sd/-
Om Prakash, J.'
9. The above order itself shows that the respondent No. 3 should have called the respondent Nos. 4 & 5 for examination in the year 1996. Had the respondent Nos. 4 & 5 been invited and cleared the examination with the petitioner even then in view of their seniority in class IV, petitioner would have been placed senior to the respondent Nos. 4 & 5. As such the rejection by respondent No. 2, of the representation made by the petitioner cannot be sustained in law.
10. In the above circumstances, for the reasons as discussed above, the impugned order dated 30.4.2001 where by the petitioner's representation is rejected relating to his seniority by the respondent No. 2, is liable to be quashed. Accordingly, the writ petition is allowed. The impugned order dated 30.4.2001 passed by respondent No. 2 is quashed. Petitioner shall be treated senior to the respondent Nos. 4 & 5, No order as to costs.