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PETITIONER: HARI NANDAN SHARAN   BHATNAGAR

       Vs.

RESPONDENT: S.   N. DIXIT & ANR.

DATE OF JUDGMENT: 25/04/1969

BENCH: MITTER, G.K. BENCH: 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

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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]

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 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

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             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 borne 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  desig- nations,  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

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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  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  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. 425