Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3540 OF 2008
(Arising out of SLP (C) No.12124 of 2006)
State of Uttaranchal & Anr. … Appellant
Versus
Madan Mohan Joshi & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Inter se seniority amongst the teachers of Kumaon University is in
question in this appeal which arises out of a judgment and order dated
21.3.2006 passed by a Division Bench of the High Court of Uttaranchal
at Nainital in Writ Petition No.71 of 2004).
2
Before adverting to the aforementioned question, we may notice
the factual matrix involved in the matter.
3. First Respondent was appointed on an ad hoc basis as a Lecturer in
Government P.G. College, Almora by the State of Utter Pradesh through
Vice-Chancellor, Kumaon University on or about 22.9.1975. The said
College was declared as the Campus College of the University. All
Lecturers including the first respondent were continued and treated on
deputation with the University; the cut off date wherefor was fixed
16.8.1977. The State of Utter Pradesh framed U.P. Regularization Rules,
1979, the relevant provisions whereof reads as under :
4.(i) Any person who
(i) was directly appointed on ad hoc basis
before 1.1.1977 and is continuing in
service.
(ii) Possessed requisite qualification
prescribed for regular appointment at the
time of such ad hoc appointment, and
(iii) Has completed or, as the case may be, after he has
completed three years continuous service.
Shall be considered for regular appointment in
permanent or temporary vacancy as may be
available on regular appointment is made in
such vacancy in accordance with the relevant
service rules or orders.”
3
4. Pursuant to and in furtherance of the said Rules, services of 355 ad
hoc Lecturers were regularized. However, the cases of nine Lecturers
including the first respondent, who had been working on deputation,
were left out. It is contended that one Savita (Mohan) Dhondiyal who
had also been appointed as an ad hoc Lecturer on 17.4.1975 and, thus,
being junior to the first respondent was regularized.
5. Representations were made by the respondents and others. The
Directorate of Higher Education, Uttar Pradesh asked the Vice-
Chancellor of the University to forward the list of the said Lecturers
pursuant whereto, services of nine Lecturers including the respondent
were regularized by an order dated 11.7.1980, stating :
“The appointing authority in exercise of powers
conferred by Rule 5 of the Regularisation of Ad
hoc Employees on the posts within the
jurisdiction of the U.P. Public Service
Commission Rules, 1979 issued by the
Department of Personnel vide its Notification
th
No.19/8/75[1] dated 14 May, 1979, and in
view of the recommendations made by the
Selection Committee constituted for
regularization of the ad hoc lecturers working
in various Government Colleges under the
st
Directorate of Education prior to 1 January,
1977 in the pay scale of 700-1600, hereby
regularizes appointments of the lecturers with
effect from the date of issuance of this order
and they are being given temporarily regular
4
appointments on the posts of Lecturers w.e.f.
th
11 July, 1980.
However, the seniority of these lecturers shall
be according to their Serial number given in the
enclosed Annexure and they will be junior to
those lecturers who have been regularized and
appointed prior to the date of regular
appointment of these lecturers.”
6. Aggrieved by the said order, they made a representation.
7. By an order dated 9.6.1988, the services of the respondent were
appointed with effect from 1.7.1983, it was stated :
“Following officers of the Government Colleges
working as Lecturers in Botany Science in the pay
scale of 2200-4000 are hereby appointed on
probation period of two years on the same dates
with effect from the dates mentioned against their
names and their earlier services would be counted
towards this probation period and they are hereby
regularized on the said post and in the same pay
scale. However, their seniority would be
determined later on.
Sr. Name and designation Date of Details of
No. of Officer who has regulari-
vacancies
Been regularized. sed
1-20 XX XX XX
21. Shri Madan Mohan 1.7.1983 Regularised
Joshi, Lecturer in on the post
Botany Science w.e.f 1.7.1983
5
Vide G.O.
No.2058/15
84-11-12-46/81
Dt. 1.8.1984”
8. The State of Uttarakhand then known as State of Uttaranchal has
been curved out from the State of Uttar Pradesh. In the seniority list, the
first respondent was placed at serial number 137 whereas Mrs. Savita
(Mohan) Dhondyal was placed at serial No.102. Objections were filed to
the said seniority list wherefor recommendations were made by the
Directorate of Higher Education in the following terms :
“Dr. Joshi was appointed on ad hoc basis and
pursuant to his appointment he joined Almora
nd
College on 22 September, 1975. Later on his
services were approved by the Director of
Education (Higher Education), Uttar Pradesh,
th
Allahabad on 27 March, 1976 with effect from
the date of his joining the post. His name in the
seniority list would have been mentioned at Sr.
No.102 after the name of Smt. Deveshwari
Bisht on the basis of his order of first
appointment. But it would have been possible
if his name would have been considered in the
nd
order of regularization dated 22 May, 1980. It
appears that his name was not included in the
nd
said order dated 22 May, 1980 although Shri
Joshi was fully eligible for being considered in
nd
the said order dated 22 May, 1980 according
to the Regularisation Rules of 1979. Therefore,
if the Government so wishes, his order of
th
regularization dated 11 July, 1980 should be
amended to the above effect.”
6
9. A writ petition was filed by the first respondent before the High
Court of Uttaranchal at Nainital which by reason of the impugned
judgment has been allowed.
10. Mr. Gopal Subramanium, learned Additional Solicitor General
appearing on behalf of the State, would submit that the High Court
committed a serious error insofar as it failed to take into consideration
that the State Uttaranchal, having framed the Uttaranchal Higher
Education (Group A) Service Rules, was bound by the provisions thereof
and in that view of the matter, the High Court committed a serious error
insofar as it failed to take into consideration the effect of the statutory
rules governing the field in their proper perspectives.
11. Mr. Garg, learned counsel appearing on behalf of the respondent,
on the other hand, would contend that as the instant case is governed by
the Rules which were applicable prior to coming into force of 2003
Rules, the High Court has not committed any illegality or the impugned
judgment is unassailable.
12. It was contended that in the writ petition it was not necessary for
the first respondent even to implead the said Savita (Mohan) Dhondyal
7
and others as party respondents, as no relief had been claimed against
them. Reliance has been placed on A. Janardhana v. Union of India &
Ors. [(1983) 3 SCC 601].
13. Services of the first respondent as also several others including
Savita (Mohan) Dhondyal, as noticed herein before were regularized in
terms of the provisions of the U.P. Regularisation Rules.
Indisputably, services of those whose names appear above the first
respondent, services of those were regularized w.e.f 22.5.1980 whereas
that of the first respondent was regularized from 11.7.1980. The order
dated 11.7.1980 categorically stated :
“Under Rule 4(3) of Uttar Pradesh Regularisation
of Ad hoc Appointment within the purview of
Public Service Commission Rules 1979 framed
vide notification No.19/8/75 (1) dated 14-5-1979
by the Personnel Department, on the
recommendation of the Selection Committee
constituted for regularization of Lecturers
appointed on ad hoc basis in the pay scale of
Rs.700-1600 prior to 1-1-1977 in the U.P.
Government Inter Colleges under the Directorate
of Higher Education and in exercise of powers
under Rule 5 of the aforesaid Rules the
competent authority is pleased to regularize ad
hoc appointment of Lecturers mentioned in the
Schedule-1 w.e.f. the date of issuance of this
order and they are given regular temporary
appointment on the post of Lecturer w.e.f.
11.7.1980.
8
The seniority of these Lecturers will be as per the
serial given in the schedule and they will be
junior to the regularly selected Lecturers who
have been appointed prior to the regular
appointment of these Lecturers.”
The said direction has not been set aside by the High Court.
Validity thereof may be in question in the writ petition.
14. The question as to which Rule would govern the inter se seniority
amongst the parties has not been determined. Rule was framed by the
State of Uttaranchal in 2003 in terms of the proviso appended to Article
309 of the Constitution of India.
Rule 3(k) defines ‘substantive appointment’ to mean an
appointment, not being an ad hoc appointment, on a post in the cadre of
the Service made after selection in accordance with the rules and if there
are no rules in accordance with the procedure prescribed for the time
being by executive instruction issued by the Government.
15. Rule 20 of the said Rules lays down the mode of determining
seniority in the following terms :
“ 20. Seniority :
(1) Except as hereinafter provided, the
seniority of persons in any category of posts
9
shall be determined from the date of the order
of substantive appointment and if two or more
persons are appointed together by the order in
that case it will mean the date of issue of order :
Provided that –
(a) if the appointment order specified a
particular back date with effect from
which a person is appointed,
substantively, that date will be deemed to
be the date of order of substantive
appointment and in other cases it will
mean the date of issue of the order;
(b) if more than one order of appointment
are issued in respect of any one selection,
the seniority shall be as mentioned in the
combined order of appointment issued
under sub-rule (2) of rule 17.
(2) The seniority inter se of persons
appointed directly on the result of any one
selection shall be the same as determined by the
Commission :
Provided that a candidate recruited directly may
lose his seniority if he fails to join without valid
reasons when the post is offered to him. The
decision of the Appointing Authority as to the
validity of reasons shall be final.
(3) The seniority inter-se of persons
appointed by promotion shall be the same as it
was in the cadre from which they were
promoted.”
The said Rule also contains a power of relaxation being Rule 25
which is to the following effect :
10
“ 25. Relaxation of the Conditions of service :
Where the State Government is satisfied that
the operation of any rule regulating the
conditions of Service of a person appointed to
the Service causes undue hardship in any
particular case, it may notwithstanding any
thing contained in the rules applicable to the
case, by order dispense with or relax the
requirements of that rule to such extent and
subject to such conditions, as it may consider
necessary, for dealing with the case in a just
and equitable manner :
Provided that where a rule has been framed in
consultation with the Commission that body
shall be consulted before the requirements of
the rule are dispensed with or relaxed.”
16. The question as to whether the said Rules will have retrospective
effect or in any event will govern the cases of the parties, thus, was
required to be determined by the High Court.
17. The High Court, in its impugned judgment, proceeded on the basis
as to what would constitute a substantive appointment. The decisions of
this Court, whereupon strong reliance has been placed by the High Court
in arriving at its conclusion may not be of much significance but what is
significant is that in the writ petition even Savita (Mohan) Dhondyal and
others who lose their seniority in the event writ petition was to be
allowed, were not impleaded as parties. They, in our opinion, should
11
have been impleaded as parties in the writ application. Savita (Mohan)
Dhondyal and others, if the writ petition is allowed, would suffer civil
consequences. Inter se seniority may not be a fundamental right, but is a
civil right. [See State of UP & Anr. v. Dinkar Sinha [2007 (7) SCALE
8]. The respective rights of seniority of the parties, thus, required
determination in their presence.
18. A Three Judge Bench of Court in Prabodh Verma & Ors. v. State
of Uttar Pradesh & Ors. [AIR 1985 SC 167], stated the law as under :
“A High Court ought not to decide a writ
petition under Article 226 of the Constitution
without the persons who would be vitally
affected by its judgment being before it as
respondents or at least by some of them being
before it as respondents in a representative
capacity if their number is too large, and,
therefore, the Allahabad High Court ought not
to have proceeded to hear and dispose of the
Sangh’s writ petition without insisting upon the
reserve pool teachers being made respondents
to that writ petition, or at least some of them
being made respondents in a representative
capacity, and had the petitioners refused to do
so, ought to have dismissed that petition for
non-joinder of necessary parties.”
19. Reliance placed on A. Janardhana (supra) by Mr. Garg, in our
opinion, is misplaced. Therein, no relief was claimed against any
12
individual. The only relief which was claimed therein was against the
Union of India. The question which was raised therein was a question of
interpretation. It was in the aforementioned situation, this Court held
that all the employees were not required to be impleaded as a party. In
that case, the case of direct recruits has not gone unrepresented. It was
stated:
“In this case, appellant does not claim seniority
over any particular individual in the
background of any particular fact controverted
by that person against whom the claim is made.
The contention is that criteria adopted by the
Union Government in drawing up the
impugned seniority list are invalid and illegal
and the relief is claimed against the Union
Government restraining it from upsetting or
quashing the already drawn up valid list and for
quashing the impugned seniority list. Thus, the
relief is claimed against the Union Government
and not against any particular individual. In
this background, we consider it unnecessary to
have all direct recruits to be impleaded as
respondent.”
20. For the reasons aforementioned, we are of the opinion that the
interest of justice would be subserved if the impugned judgment is set
aside and the matter is remitted to the High Court for consideration of the
matter afresh. In the writ petition, the first respondent may file an
appropriate application for impleading Savita (Mohan) Dhondyal and
13
others as parties and/or some teachers in their representative capacity.
The High Court is requested to allow the said application for
impleadment and determine the matter in accordance with law as
expeditiously as possible, preferably within the period of 8 weeks of the
communication of this Order.
21. The appeal is disposed of accordingly.
……………..…………J.
[S.B. Sinha]
.………………….……J.
[Lokeshwar Singh Panta]
New Delhi
May 13, 2008