Full Judgment Text
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CASE NO.:
Appeal (civil) 5005-5006 of 2003
PETITIONER:
D.R. Yadav & Anr.
RESPONDENT:
Vs.
R.K. Singh & Anr.
DATE OF JUDGMENT: 18/07/2003
BENCH:
CJI. & S.B. Sinha.
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Civil) No.19788-19789/2002)
S.B. SINHA, J :
Leave granted.
Dispute of inter se seniority between the appellants and the respondent
No. 1 is in question in this appeal which arises out of a judgment and order
dated 23.5.2002 passed by a Division Bench of the High Court of Judicature
at Allahabad, Lucknow Bench in Writ Petition No. 1780(S/B) of 2000 and
Writ Petition No. 195(S/B) of 2001.
FACTUAL MATRIX:
The Legislature of the State of U.P. enacted U.P. Urban Planning &
Development Act, 1973 (hereinafter referred as ’1973 Act’). The said Act
was enacted to provide for the development of certain areas of Uttar Pradesh
according to the plan and for matters connected therewith and ancillary
thereto.
By reason of Section 4 of the said Act an Authority to be called the
Development Authority for any development area was constituted. Section
5 deals with the staff of the said authority. Sub-section (2) of Section 5 of
1973 Act contemplates that subject to such control and restrictions as may
be determined by general or special orders of the State Government, the
authority may appoint such number of other officers and employees as may
be necessary for the efficient performance of its functioning. The reason for
the said enactment inter alia is stated to be:
"In the developing areas of the State of Uttar
Pradesh the problems of town planning and Urban
development need to be tackled resolutely. The
existing local bodies and other authorities in spite
of their best efforts have not been able to cope with
these problems to the desired extent. In order to
bring about improvement in this situation, the State
Government considered it advisable that in such
developing areas, Development Authorities
patterned on the Delhi Development Authority be
established. As the State Government was of the
view that the Urban development and planning
work in the State had already been delayed it was
felt necessary to provide for early establishment of
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such authorities."
By reason of the provisions of the said Act, thus, other statutes
governing the field relating to town planning and urban development
remained suspended in terms of Sub-section (1) of Section 59 of the Act.
Sub-Section (3) of Section 59 reads as under:
"On and from the constitution of the Development
Authority in relation to a development area which
includes the whole of a city as defined in the Uttar
Pradesh Municipal Corporations Act, 1959, all
posts borne on the establishment of the Municipal
Corporation of that city exclusively in connection
with its activities under Chapter XIV of the said
Adhiniyam or under the Uttar Pradesh (Regulation
of Building Operations) Act, 1958, immediately
before the date of the constitution of the
Development Authority, not being a post governed
by the Uttar Pradesh Palika (Centralized) Services
Rules, 1956 (hereinafter in this section referred to
as the Centralized Services), shall, on and from
such date, stand transferred to the Development
Authority with such designations as the Authority
may determine and officers and other employees
who are not members of any Centralised Services,
serving under the Municipal Corporation of that
city not exceeding the number of posts so
transferred shall be selected in accordance with
such directions as may be issued by the State
Government for being appointed on the said posts
and on such selection shall stand transferred to and
become officers and other employees of the
Development Authority and shall as such hold
office by the same tenure, at the same
remuneration and on the same terms and
conditions of service as they would have held the
same if the Authority had not been constituted, and
shall continue to do so unless and until such
tenure, remuneration and terms and conditions are
duly altered by the Authority.
Provided that any service rendered under the
Municipal Corporation by any such officer or other
employee before the constitution of the Authority
shall be deemed to be service rendered under the
Authority.
Provided further that the Authority may employ
any such officer or other employee in the discharge
of such functions under this Act as it may think
proper, and every such officer or other employee
shall discharge those functions accordingly."
In terms of Section 4 of the said Act, Lucknow Development
Authority was constituted on 13.09.1974 whereupon all posts borne on the
development wing of the other local bodies like Nagar Mahapalika or
Municipal Corporation etc. stood transferred thereto.
Pursuant to or in furtherance of applications having been invited to fill
up the posts of Assistant Engineer (C), the appellants applied therefor and
were subsequently appointed. Appellant No. 1 joined the post of Assistant
Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on
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12.07.1979. Respondent No. 1, however, was admittedly appointed on or
about 12.10.1976.
The State Government thereafter created Development Authorities
Centralised Service with effect from 22.10.1984 by inserting Section 5-A
therein. In terms of Sub-Section (2) of Section 5-A, a person serving on the
posts included in such service immediately before such creation shall finally
or provisionally be absorbed in the Development Authorities Centralised
Service if he was confirmed in his post or if he was holding temporary or
officiating appointment, as the case may be. The appellants were absorbed
in the posts of Assistant Engineer.
It is not in dispute that Respondent No. 1 was provisionally promoted
to the Post of Assistant Engineer on purely reference basis by an Office
Memorandum dated 3rd May, 1986. Appellants were said to have been
promoted to the post of Assistant Executive Engineer on purely ad hoc basis
in terms of Office Memorandums dated 3rd May, 1986 and 31st January,
1987. The appellants as also Respondent No. 1 were finally absorbed in the
Centralised Service on the post of Assistant Engineers by an Office
Memorandum issued on 14 May, 1987.
The State Government issued a seniority list in terms of Office
Memorandum dated 12th April, 1996. The said seniority list was the subject
matter of Writ Petition filed by Respondent No. 1. In the meantime,
Appellant No. 1 was promoted to the Post of Chief Engineer resulting in
filing of second Writ Petition before the Lucknow Bench of Allahabad High
Court by the Respondent No. 1. However, during pendency of the said Writ
Petition, the order of promotion of Appellant No. 1 was rescinded on
29.11.2001. Several applications thereafter were filed before the State
Public Services Tribunal questioning the said seniority list and the
promotion to the Posts of Executive Engineer and Chief Engineer. The
Tribunal allowed the said applications whereagainst the State of Uttar
Pradesh preferred several writ applications. The writ petitions together with
the writ applications pending before it were taken up for hearing by the High
Court and by reason of the impugned judgment dated 23.05.2002 it was held
as follows:
"Having examined the materials on record and the
submissions made by the parties and in the light of
various decisions of the Supreme Court referred
hereinabove, we find no infirmity in the impugned
judgment of the Tribunal and the Tribunal has not
erred in directing the State Government to
determine the seniority of the claimants and to
grant promotions with effect from the date their
juniors have been so promoted.
Therefore, while affirming the judgments of the
Tribunal, we direct that in the light of the decision
of the Apex Court in the case of Mohan Karan’s1
case, the seniority in the cadre of Junior Engineers,
Assistant Engineers and Chief Engineers shall be
counted from the date of initial appointment and
the members of the Centralised Service who had
rendered service in other departments on similar/
equivalent posts, shall be decided in the light of the
decisions of the Supreme Court and the
observations made hereinabove. The State
Government shall make endeavour to comply
directions of the Tribunal with respect to fixing of
seniority and promotion of the claimant â\200\223
respondents within three months."
It is not in dispute that two different rules relating to determination of
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seniority were operating in the field; one being a general rule known as ’The
Uttar Pradesh Government Servants Seniority Rules, 1991’; the other being
the special rules known as ’U.P. Development Authorities Centralised
Service Rules, 1985’ framed by the State of Uttar Pradesh in exercise of its
powers conferred under Section 55 of the Uttar Pradesh Urban Planning and
Development Act, 1973 read with Section 5-A thereof.
RELEVANT STATUTORY PROVISIONS:
The relevant rules of U.P. Development Authorities Centralised
Service Rules, 1985 which are material for the purpose of this case read as
under:
"PART II
CADRE AND STRENGTH
3. (1) There shall be the following categories of the
posts in the cadre of the service and they shall consist
of the posts mentioned against them â\200\223
Service
Posts included in the service
Scales of Pay
in Rs
1
2
3
I to III
Omitted
IV. Town
Planning &
Architectural
1. Mukhya Nagar Niyojak
1780-2300
2. Nagar Niyojak
1250-2050
3. Sahayak Nagar Niyojak
850-1720
4. Vastuvid/Statistical
Assistant
570-1100
5 to 10 Omitted
V to VIII
Omitted
Note. - The undernoted posts, as specified above,
shall include the post or posts mentioned against
them as also the posts carrying identical scales of
pay in the same or equivalent cadre.
Post
Post(s) included
(1) to (8)
Omitted
(9) Mukhya Nagar Niyojak
Vastuvid Niyojak
(10) Sahayak Nagar Niyojak
Vastuvid (Rs. 850-1720)/Sahayak
Vastuvid/Landscape Vastuvid/
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Vastuvid Niyojak/Research
Officer.
(11) to (22)
Omitted
Note. - (2) The post or posts specified above but
not existing in any Development Authority on the
date of enforcement of these rules, shall not mean
to have been created or come into existence by
virtue of the provisions of this rule.
7. (1) Notwithstanding anything in Rule 28 the
seniority of such officers and other employees who
are finally absorbed in the service under sub-
section (2) of Section 5-A of the Act shall be
determined on the criterion of continuous length of
service including the services rendered in a
Development Authority, Nagar Mahapalika,
Nagarpalika or Improvement Trust on similar
posts.
21. Procedure for recruitment by promotion:
Recruitment by promotion shall be made on the
basis of seniority subject to the rejection unfit (in
accordance with the Uttar Pradesh Promotion by
selection in Consultation with Public Service
Commission (Procedure) Rules, 1970 as amended
from time to time.
28. (1) Except as hereinafter provided, the
seniority of persons in any category of post, shall
be determined from the date of order of
appointment and if two or more persons are
appointed together, by the order in which their
names are arranged in the appointment order :
Provided that 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 (3) of Rule 25.
*
(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 relevant provisions of Uttar Pradesh Government Servants
Seniority Rules, 1991 read as under:
"2. These Rules shall apply to all government
servants in respect of whose recruitment and
conditions of service, rules may be or have been
made by the Governor under the proviso to Article
309 of the Constitution.
3. These Rules shall have effect notwithstanding
anything to the contrary contained in any other
service rules made heretobefore.
4. In these Rules, unless there is anything
repugnant in the subject or context, the expression
-
(f) ’service’ means the service in which the
seniority of the member of the service has to be
determined;
(g) ’service rules’ means the Rules made under the
proviso to Article 309 of the Constitution, and
where there are no such rules, the executive
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instructions issued by the Government regulating
the recruitment and conditions of service of
persons appointed to the relevant service;
6. Where according to the service rules,
appointments are to be made only by promotion
from a single feeding cadre, the seniority inter se
of persons so appointed shall be the same as it was
in the feeding cadre."
PRIMAL QUESTION:
The dispute between the parties before the High Court as stated in the
impugned judgment is as under:
"The crux of the matter in these petitions is
fixation of seniority and consequential promotions.
As mentioned earlier with effect from 12.6.1973
the Uttar Pradesh Planning and Development
Ordinance, 1973 was promulgated for the purpose
of creating various development authorities in
Uttar Pradesh. The said ordinance later on became
the Act (U.P. Act No. 11 of 1973) which came into
existence on 7.11.1973. In pursuance of the said
ordinance and Act, various development
authorities were created through notification issued
in exercise of the powers under Section 4 of the
said Act of 1973. In the development authorities,
initially besides other staff, Junior Engineers and
Assistant Engineers were appointed by the
concerned authorities of respective development
authorities. Thereafter, some Junior Engineers
were promoted to the post of Assistant Engineer in
50% promotion quota and some Assistant
Engineers were promoted to the post of Executive
Engineer."
SUBMISSIONS:
Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of
the appellants raised a short question in this appeal. The submission of
learned counsel is that the High Court went wrong in applying the 1991 rules
relying on or on the basis of decision of this Court in Mohan Karan (supra)
without effectively considering the provisions of Article 309 of Constitution
of India. It clearly stipulates that in terms of proviso appended thereto the
Governor can frame a rule so long as the State or the concerned statutory
authorities do not make any provisions laying down the conditions of service
by or under a statutory enactment. In other words, once a Legislation has
come into being and rules have been framed thereunder governing the field,
the general rules made by the Governor in terms of proviso appended to
Article 309 of the Constitution of India must give way to the special rules
framed under the statute. Thus, when there exist Special Rules, General
Rules cannot be applied. Strong reliance in this behalf has been placed on
Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others
[(2002) 6 SCC 127].
The learned counsel would further submit that the decision of this
Court in Mohan Karan (supra) does not lay down a good law.
Mr. Dwivedi would urge that as the appellants were absorbed in the
centralised services, their seniority shall be determined in terms of Rule 7 of
the 1985 Rules. He would in this connection lay emphasis on the words ’on
similar posts’ occurring in Rule 7.
Mr. Harish Salve, the learned Senior Counsel, on the other hand,
would submit that assuming that the special rule shall apply in the instant
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case; the same would be of not much relevance as the seniority has to be
determined in terms of Sub-Rule (1) of Rule 7 of 1985 Rules on the criteria
of continuous length of service including the service rendered in a
Development Authority, Nagar Mahapalika, Nagarpalika or Improvement
Trust on similar posts, and as the manner for determination of continuous
length of service is not provided in the said sub-rule, the general rule must
be taken recourse to for the said purpose. In this connection our attention
has been drawn to the cadre of Service contained in Rule 3 of the 1985
Rules.
FINDINGS
It appears that having regard to the absorption of the employees from
different authorities in the Centralised Service on 22.10.1984, according to
the High Court, some sort of chaos was created amongst the members of the
Service. The High Court relying on or on the basis of a Division Bench
decision of this Court in Mohan Karan’s case (supra) held that the provisions
of the Rules 1991 shall apply for the purpose of determination of inter se
seniority. Therein it was held:
14. We have already extracted Rule 6 of these
Rules, which relates to seniority where the
appointments are by promotion only from a single
feeding cadre. But for Rule 3 above mentioned, we
would have accepted the contentions of learned
counsel for the appellant and upset the judgment of
the High Court. Rule 3, in our view, overrides all
other rules made earlier in other services in the
State, whereas Rule 7 of the Centralised Services
Rules has the overriding effect against Rule 28 of
those Rules only. Further, the title of 1991 Rules
clearly suggests that the seniority among the
government servants in U.P. should be fixed in the
light of these Rules. Therefore, we are inclined to
hold that Rule 6 of the U.P. Government Servants’
Seniority Rules, 1991 cannot be ignored as it has
overriding effect on Rule 7 of the Centralised
Services Rules.
The 1991 Rules were framed by the Governor of Uttar Pradesh in
exercise of his power conferred under the proviso appended to Article 309 of
the Constitution of India. The Proviso appended to Article 309 of the
Constitution reads thus:
"Provided that it shall be competent for the
President or such person as he may direct in the
case of services and posts in connection with the
affairs of the Union, and for the Governor of a
State or such person as he may direct in the case of
services and posts in connection with the affairs of
the State, to make rules regulating the recruitment,
and the conditions of service of persons appointed,
to such services and posts until provision in that
behalf is made by or under an Act of the
appropriate Legislature under this article, and any
rules so made shall have effect subject to the
provisions of any such Act."
On a plain reading of the said provision, there cannot be any doubt
whatsoever that rules framed thereunder would apply so long as a statute or
statutory rules or any other subordinate legislation governing the conditions
of service are not enacted or made or not otherwise operating in the field. In
other words, rules made under proviso to Article 309 of the Constitution are
for a transitory period and the same would give way to the special rules once
framed. However, if a statute or rules made thereunder was/were already
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operating in the field, the general rules made under proviso to Article 309
would not apply to the Services created thereunder.
The submission of Mr. Dwivedi to the aforementioned extent appears
to be correct.
In the event two conflicting rules are operating in the same field, the
doctrine of generalia specialiabus non derogant shall apply. It was so held in
Chandra Prakash Tiwari (supra).
But the question which arises for consideration in these appeals does
not solely depend on the applicability of the general rules vis-Ã -vis the
special rules.
It is true that the appellants were sought to be promoted to the Posts of
Assistant Executive Engineer. The said posts, however, were not available.
They were, therefore, absorbed ultimately in the posts of Assistant Engineer.
The State of U.P. in its counter affidavit stated:
"It is stated that petitioner No. 1 was promoted on
temporary basis by Lucknow Development
Authority till further orders on the post of
Assistant Executive Engineerâ\200¦It is relevant to
mention that on 22.10.1984, the petitioners were
working on the post of Assistant Executive
Engineer. Upon creation of the U.P. Development
Authorities Centralised Service, since there was no
post of Assistant Executive Engineer in the said
service, hence the petitioners were absorbed on the
post of Assistant Engineer in the service."
What was, therefore, relevant for the purpose of determination of
seniority even in terms of Rule 7 of the 1985 Rules, was the continuous
service rendered by the concerned employees ’on similar posts’, which
would mean posts which were available having been legally created or borne
on the cadre.
The ad hoc or temporary promotion granted to the appellants on
03.05.1986 and 13.01.1987 respectively on non-existent posts of Assistant
Executive Engineer would not, therefore, confer any right of seniority on
them. Thus, for all intent and purport for the purpose of determination of
seniority, the appellants were not promoted at all. Once they have been
absorbed with Respondent No. 1 and other employees similarly situated,
their inter se seniority would be governed by the statutory rules operating in
the field. The case of the appellants vis-Ã -vis Respondent No. 2 although
may be governed by the special rules, in terms of Rule 7, the same has to be
determined on the criteria of continuous length of service including the
service rendered in a Development Authority, Nagar Mahapalika,
Nagarpalika or Improvement Trust on similar posts. The appellants, it will
bear repetition to state, although were promoted at one point of time on
purely ad hoc basis to the posts of Assistant Executive Engineer as the said
posts even in their parent authority were not of similar type, the same would
not be relevant for the purpose of determining the inter se seniority. If the
rule of continuous service in same and similar posts is to be resorted to, the
date of initial appointment would be a relevant criteria therefor. [See M.
Ramachandran Vs. Govind Ballabh and others [(1999) 8 SCC 592], K.
Anjaiah and Others Vs. K. Chandraiha and others [(1998) 3 SCC 218],
Vinod Kumar Sharma Vs State of U.P. and Another [(2001) 4 SCC 675],
S.N. Dhingra and others Vs. Union of India and others [(2001) 3 SCC 125].
In a recent decision in Kaushal Kishore Singh Vs. Dy. Director of
Education and others [(2002 AIR SCW 19)], this Court held:
"The claim of seniority of the employee is always
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determined in any particular Grade or Cadre and it
is not the law that seniority in one Grade or Cadre
would be dependent on the seniority in other Grade
or Cadre."
As the post of Assistant Executive Engineer was not a cadre Post, the
appellants cannot be said to have been working on a higher post for the
purpose of Rule 7 of the 1985 Rules.
Yet again in Md. Israils and others Vs. State of West Bengal and
others (2002 AIR SCW 68), it was held:
"The corollary of the above Rule is, where the
initial appointment is only adhoc and not
according to the rules and made as a stop-gap
arrangement, the officiation in such post cannot be
taken into account for considering the seniority."
CONCLUSION:
In view of our findings aforementioned, we have no other alternative
but to uphold the order of the High Court, albeit for different reasons.
Accordingly, the Appeals are dismissed. The parties shall pay and bear
their own costs in these appeals.
In view of aforementioned, it is not necessary to pass any separate
order on the Interlocutory Applications.