Hari Nandan Sharan Bhatnagar v. S. N. Dixit & Anr.

Judgment

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 Legi~lative 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 prelerence 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 fii :; 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 seniori!)'. In view of the fact that Uma Shanker had not put in the mmimum period of ten years' service as Upper Division Assistant the Speaker of the Assembly did not thin, 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 provision.< of Rule 7. The said Rule reads: "Recruitment to the post of the Superintnedent 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 a<sistant most fitted for the post. If, l Hill NANDAN v. S, N. DlX!T (Mi~ter, J.) however, no suitable assistant is avail.able fo~ prom?· tion from amongst the grade of supenor service assJS· tants in the Council Department, recruitment may, as a special case, be made from outside." The apP"'Jlant filed a suit in the court of the Munsif of South Lucknow impleading the State of Uttar Pradesh, the Speake_r, Legislative Assembly of the State and Dixit as defendants thereJJl and praying for a dec:ee for _declaratio'.1 that he s~ou~d be deemed entitled to the post of Supermtendent m the Legislative A.ssembly with effect from 1st January 1962 and a further declarauon that the order dated October 7 1961 appointing defendant No. 3 as SuperintendQnt was illegal' and ultra vires.

Written statements were filed on behalf of the defendants. The learned Munsif held in the ptaintift's favour. His judgment was upheld in .appeal by the Civil Judge Lucknow. The same was reversed m Second Appeal to the High Court. The order; 1Qf the Speaker passed in October 1961 shows that he had considered the matter carefully before appointing Dixit to the post. tbe contention of learned counsel for the appellant ~as 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 borne on the roll of Upper Division Assistants. Ex.

10 the gradation list of permanent ministerial estabUshment 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 o.f 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 Hign 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 : M 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 (Jourt noted that the dictionary meaning of "grade" was 'raink' 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 1 selection post and seniority by itself was not a sufficient qualification for promotion. The Speaker had to take into consideration the claims of Senior SUPlll!MB COWT lll!POllTS [1970] I S.C.R. ':Jpper Divisi<¥t Assistan~ but und.er the rules his choice was not limited to the Upper D1vis1on Assistants. He could consider the ~!aims of others who were in the ~e grade, that is to say, enjoymg the same scales ol 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 vere eligible for promotion 10 the post of the Superintendent Counsel argued that this would be an unreasonable interpre· tation 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 l\Dyone 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 passinjl a competitive cxaminatlOn held by the Public Service Commission the first r~spondent had failed to pass such a test. These are matters an 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 Secretarv of the Legislative Department. In the result the appeal is dismissed, but we make no order as to costs. ·G.C. Appeal dismissed.