DHARMENDRA PRASAD & ORS. versus SUNIL KUMAR & ORS. on 6 December 2019

[2019] 14 S.C.R. 763

DHARMENDRA PRASAD & ORS.

v.

SUNIL KUMAR & ORS.

(Civil Appeal No. 9247 of 2019)

DECEMBER 06, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law:

Seniority – Determination of – Of the employees of astatutory body – Different appointment letters issued to differentcategories i.e. General, OBC, SC and ST at different time – Dateof appointment of appellants (candidates higher in merit list) waslater than the date of appointment of respondents (candidates whowere lower in the merit list) – Later seniority list declared on thebasis of the merit list – Seniority list was challenged before theTribunal taking the plea that the list should be as per the date ofappointment and not merit list – Application dismissed – In writpetition High Court held that seniority in terms of Regulation 23has to be determined from the date of appointment – Appeal toSupreme Court – Held: Regulation 20 mandates that appointmentshave to be made, in order in which the candidates stand in the listprepared under Regulations 16(2), 17 or 18 – Regulation 23 hasto be read in terms of Regulation 20 – Therefore, irrespective ofdate of appointment, the seniority has to be fixed as per the meritof the candidate – The seniority has also not been framed keepingin view the Government Order dated 31st August, 2001 asmandated to be followed by Regulation 6 – Seniority also couldnot have been fixed as per Uttarakhand Government ServantSeniority Service Rules, 2002 – Such Rules since were framedunder proviso to Art. 309 of the Constitution, are not applicableto a statutory body unless adopted by such body – Uttar PradeshJal Board Subordinate Engineering Service Regulations, 1978 –Regulations 6,16(2),17,18,20 and 23 – Uttarakhand GovernmentServant Seniority Service Rules, 2002 – r. 5.

Disposing the appeals, the Court

HELD: 1. The admitted facts are that the appellants arehigher in merit than the writ petitioners before the High Court763

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Abut the writ petitioners were appointed earlier in point of timethan the appellants who came to be appointed subsequently bythe unique method of appointment resorted to by the Nigam. Itis also an admitted fact that the result was declared by the Nigamof each category i.e. General, OBC, SC, ST as per their ownmerit. [Paras 9 and 10] [768-C; 769-F]B

2. Regulation 20 of the Uttar Pardesh Jal Board SubordinateEngineering Service Regulations, 1978 mandates the appointingauthority to make the appointments from amongst thecandidates in order in which they stand in the list prepared underRegulations 16(2), 17 or 18. Any appointment made by theCemployer, in contravention of the statutory Regulations cannotdefeat the rights of the appellants only because they have notchallenged the appointment of their juniors at an earlier pointof time. Regulation 23 provides that seniority of personsappointed in any branch of service shall be made as persubstantive appointment. The appointment in Regulation 23 hasDto be read in terms of Regulation 20 mandating the manner ofappointment. Therefore, irrespective of the date of appointment,the seniority has to be fixed as per the merit of the candidatesdetermined by the Selection Committee. [Para 17] [771-H; 772-A-B]

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3. However, Regulation 6 itself contemplated thatreservation of candidates belonging to SC, ST, Backward Classesand the candidates of other categories shall be in accordancewith the orders of the Government in force at the timeof recruitment. In terms of such Regulations, the GovernmentForder dated 31st August, 2001 becomes applicable to determinethe extent of reservation which includes the methodof determining seniority as well. Apart from the statutoryRegulation 6, even the approval of the State Government to fillup 88 posts specifically mentions that the reservation shall bemade as per the 100 points roster as prescribed in the CircularGdated 31st August, 2001. Admittedly, the seniority has not beenframed keeping in view the roster circulated on 31st August,2001. [Para 18] [772-C-E]

4. The seniority cannot be fixed as per Rule 5 of theUttarakhand Government Servant Seniority Service Rules, 2002.HSuch Rules were not adopted to be applicable to the Nigam. The Rules were approved by the Board of the Nigam on 24thSeptember, 2007 proposing that the provision shall be made inthe proposed service regulations but the Rules were madeapplicable in the year 2011 only. Such Rules have been framedunder the proviso to Article 309 of the Constitution and theyare not applicable to a creation under a Statute. These Rulesare applicable to government servants in respect of whoserecruitment and condition of service Rules may be or have beenmade by the Government under the proviso to Article 309 ofthe Constitution. Since the employees of the Nigam are notgovernment servants nor are their service conditions governedby Rules framed under the proviso to Article 309 of theConstitution, therefore, such Rules unless adopted by the Nigamcannot be extended to the employees of the Nigam. [Para 19][772-E-H; 773-A]

5. Therefore, the order of the High Court and that of theTribunal are not sustainable in law as the seniority list has notbeen prepared in accordance with the roster circulated on 31stAugust, 2001 which is required to be mandatorily followed interms of Regulation 6 as well with the approval of the StateGovernment dated 3rd May, 2005 to fill up 88 posts. [Para 20][773-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9247of 2019.

From the Judgment and Order dated 11.07.2018 of the HighCourt of Uttarakhand at Nainital in W.P. (S/B) No.17 of 2018

With

Civil Appeal No. 9248 of 2019.

Raju Ramachandran, Nidhesh Gupta, Siddhartha Dave, Sr. Advs.,Ms. Anitha Shenoy, Ms. Rashmi Nanda Kumar, Shankar Narayanan,D. S. Bora, Shoaib Ahmad Khan, Ms. K. V. Bharathi Upadhyaya,Anoop Kr. Srivastav, Abhishek Atrey, Ms. Divya Roy, Anis AhmedKhan, Rohit Dandriyal, Satyajeet Kumar, Ms. Ankita Baluni, SiddharthNair, Siddharth Gautam, Amritanshu Barthwal, Alok Singh, BrijendraSingh, Ms. Japneet Kaur, Ms. Pallavi Singh, Ms. Vriti Gujral, Ms. NidhiGupta, R. N. Pareek, Shishir Saxena, Ms. Jemtiben, Siddhant KrishnaDave, Ms. Saumya Gupta, Ashutosh Kumar Sharma, Ms. Vidyottmay,Vishal Mahajan, Shedman Ali, Shree Prakash Sinha, Piyush Kaushik,Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The order dated 11[th] July, 2018 passed by the Division Benchof the High Court of Uttarakhand at Nainital is the subject matter ofBchallenge in the present appeals.

2. The High Court vide impugned order has directed theUttarakhand Pey Jal Nigam[1], a creation of the Statute i.e. the UttarPradesh Water Works and Sewer Arrangement Act, 1975, to determinethe seniority of the Junior Engineers strictly as per Regulation 23 ofCthe Uttar Pradesh Jal Nigam Subordinate Engineering ServiceRegulations, 1978[2]. Regulation 23 contemplates that the seniority of aperson appointed in any branch of service in any category of post shallbe made as per the date of substantive appointment.

3. An advertisement was issued by the Nigam on 29[th] November,D2004 for filling up of vacancies of 241 posts of Junior Engineer (Civil).This included 104 posts under General category, 52 posts under OtherBackward Classes[3], 70 posts under Scheduled Castes[4] and 15 postsunder Scheduled Tribes[5]. Another 38 posts were advertised for JuniorEngineer (Mechanical). The advertisement contemplated that thereserved posts shall be filled up as per the reservation policy of theEGovernment of Uttaranchal. Further the horizontal reservation in eachcategory for females, ex-servicemen, handicapped people anddependents of freedom fighters will be made as per the order of theGovernment of Uttaranchal dated 18[th] July, 2001.F4. The State Government permitted the Nigam to makeappointments to the posts of Junior Engineer and Assistant Engineeron 3[rd] May, 2005 (Annexure R3/4) and that the appointment of 34 postsof Assistant Engineer and 107 posts of Junior Engineer was to be madeas per the prescribed roster after making calculations based upon theGovernment order dated 31[st] August, 2001. Such sanction was in respectGof 88 posts of Junior Engineer (Civil).

1 for short, ‘Nigam’

2 for short, ‘Regulations’

3 for short, ‘OBC’

4 for short, ‘SC’H5 for short, ‘ST’

5. Pursuant to the above said advertisement, the selection processwas completed and a merit list on the basis of marks obtained in thewritten test and interview was published. The result was declaredseparately for the candidates belonging to different categories i.e.General category, OBC, SC and ST. Thereafter, five different sets ofappointment orders were issued from May, 2005 till December, 2005,the first being issued on 13[th] May, 2005. The appointment orders weregiven to the candidates in each category proportionate to the quotareserved for the reserved category candidates. It is pertinent to notethat one of the conditions in the letter of appointment was that theseniority will be determined later.

6. Thereafter, a tentative seniority list was published on 14[th]September, 2010 based upon the merit list prepared on the basis of themarks obtained in the written test and interview. Objections were filedto such tentative seniority list. The final seniority list was published on28[th] November, 2014 on the basis of the merit list prepared whiledeclaring the result.

7. The said seniority list became subject matter of challenge beforethe Uttarakhand Public Services Tribunal[6]. The learned Tribunaldismissed the petition vide order dated 10[th] October, 2017. Thereafter,a review petition was filed which was also dismissed on 23[rd] November,2017. The aforementioned orders were made subject matter ofchallenge before the High Court. The High Court held that since thereis no dispute about the dates of appointment of the candidates, theseniority has to be prepared in terms of Regulation 23 based upon datesof appointment rather than merit, as the rule to determine seniority isfrom the date of appointment. The High Court has allowed the writpetition with the following order:

“35. The up-shot of the above discussion is that the writ petitioneris entitled to succeed. Accordingly, the writ petition is allowed;the order passed by the Tribunal in the Claim Petition, as alsothe order passed in the Review Petition, will stand set-aside; theClaim Petition of the petitioner will stand allowed; the finalseniority list, which impugned before the Tribunal, will stand set-aside; and the order dated 03.11.2014 will also stand set aside.The fourth respondent will prepare a fresh seniority list in 6 for short, ‘Tribunal’

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Aaccordance with law and the observations made in this judgment.We would add that, as it is pointed out that petitioner wasappointed along with several others by a common order, in respectof the petitioner also, the same principle will apply, namely, that,in respect of those person, they will be governed by the approvedlist.”B

8. Resultantly, the candidates who rank higher in merit haveapproached this Court.

9. The admitted facts are that the appellants before this Courtare higher in merit than the writ petitioners before the High Court butCthe writ petitioners were appointed earlier in point of time than theappellants who came to be appointed subsequently by the unique methodof appointment resorted to by the Nigam. The Regulations have beenframed by the Nigam under the Statute establishing the same. Someof the relevant Regulations read as under:

“Regulation 6. Reservation for the candidates belonging toScheduled Castes, Scheduled Tribes & Backward Castes and thecandidates of other categories shall be in accordance with theorders of the Government in force at the time of the recruitment.

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ERegulation 16 (1) When appointment has to be done onavailability of vacancies, Appointment Authority shall review allthe applications received from the candidates and will inform thedate of written competitive examination to such candidate/candidates who are found suitable for recruitment under thisFRegulation. No candidates may be included in the writtencompetitive examination unless he has got any authority or AdmitCard from the Nigam.

(2) Appointment authority shall prepare a list of candidates inorder of merit, as is evident from the written examination, andinvite for interview those candidates who attains qualification asGper standard fixed by the Nigam. Marks obtained by eachcandidate in the interview shall be added to the marks obtainedin the written examination. Final position of a candidate shall bedetermined by the total marks obtained him, and thereafter listwill be prepared. If two or more candidates obtain equal marks,Hthen the candidate obtaining more marks in written examination will be placed higher in the merit list. If two or more candidatesobtain equal marks in both written examination and interview, thena candidate having more marks in diploma examination will beplaced higher in the merit list.

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Regulation 17 (1) The Appointing Authority shall recommend thelist of candidates prepared by the Selection Committee forappointment. Vacancies, at present or likely to arise in future,will be filled by the candidates of this list.

(2) If the Appointing Authority is not in agreement with therecommendation of Selection Committee, then this matter shallbe presented before the Nigam. The decision of the Nigam shallbe final in this regard and the Appointment Authority will takeaction as directed by the Nigam.

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Regulation 20. On vacancies being created, Appointing Authorityshall make appointment by taking names of candidates in theorder in which they stand in the list prepared under Regulation16(2) and 17 or 18.

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Regulation 23 (1) In this Regulation, seniority of person appointedin any branch of service in any category of post shall be madeas per date of substantive appointment and where two or morepersons are appointed on the same date, seniority will bedetermined by such order in which their names are arranged inthe appointment order.”

10. It is also an admitted fact that the result was declared bythe Nigam of each category i.e. General, OBC, SC, ST as per theirown merit.

11. Regulation 6 contemplates that the reservation for thecandidates belonging to SC, ST and Backward Classes and thecandidates of other categories shall be in accordance with the ordersof the Government in force at the time of the recruitment. The StateGovernment while permitting the Nigam to make appointments to theposts of Junior Engineer on 3[rd] May, 2005 (Annexure R3/4), provided A

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Athat the appointment of Junior Engineers will be made as per theprescribed roster after making calculations based upon the Governmentorder dated 31[st] August, 2001. The relevant extract from theGovernment Order is as hereunder:

“(2) Appointment on total 34 posts of Assistant Engineer andBtotal 107 posts of Junior Engineer will be made as per theprescribed roster after making calculation based on the G.O. no.1454/Karmik-2-2001 dated 31.8.01. This will be strictly compliedwith.”

12. The Circular dated 31[st] August, 2001 (Annexure R3/3) hasCa 100-point roster. As per the said Circular, the first post is to be filledup by a candidate belonging to the SC category and the last post, fromamongst the 100-point roster, is to be made under the General category.The relevant clause from the said Circular reads as under:

“(1) In continuation of the G.O. no. 1144/Karmik-2/ 2001-53(1)Ddated 18 July, 2001 regarding implementing the reservation policyin Uttaranchal, I am directed to state that 19 per cent reservationfor Scheduled Caste, 04 percent for Scheduled Tribe and 14 percent for OBCs has been provide in direct recruitments.

(2) In order to ensure the aforesaid reservation, the followingEroster has been prepared…(3) It is requested that the aforesaid Roster shall continuouslybe implemented in matters of direct requirements.”

13. The stand of the State is that the Regulations are parimateria with the Uttarakhand Government Servant Seniority ServiceFRules, 2002 which prescribes that the seniority of persons appointedon the basis of the result of any one selection, shall be the same as itis shown in the merit list prepared by the Committee. Reliance is placedupon clause (9) of the appointment letter dated 13[th] May, 2005 whichis to the effect that the seniority of the candidates to the post of JuniorGEngineer (Civil/Mechanical) will be decided later.

14. On the other hand, the Nigam in its counter affidavit statedthat as on 29[th] November, 2004, 241 vacancies of Junior Engineer (Civil)were advertised. The written examination was conducted on 26[th]December, 2004 and the candidates were called for the interview. TheHState Government approved 88 posts to be filled up as per the roster mentioned in the Circular dated 31[st] August, 2001 and the appointmentorders were issued.

15. Mr. Raju Ramachandran, learned senior counsel for theappellants argued that the High Court has erred in law in upsetting theseniority list on the basis of Regulation 23 as the stand-alone provision.It is argued that Regulation 23 has to be read along with otherRegulations particularly Regulations 16, 17 and 20. The appointingauthority is bound to make appointments by taking the name ofcandidates in the order in which they stand in the list prepared underRegulations 16(2) and 17 or 18. All the Regulations have to be readharmoniously and one Regulation cannot be read in isolation so as todefeat the merit prepared by the Selection Committee only on accountof the fortuitous circumstance of giving appointment to some of thecandidates lower in the merit list at an early point of time. Sinceappointments could be made only in terms of the merit list, therefore,Regulation 23 has to be read along with Regulation 20. The mere factthat some juniors have been appointed earlier in point of time will notmake them steal march over the appellants who are higher in merit.

16. On the other hand, Mr. Nidhesh Gupta, learned senior counselfor the writ petitioners submits that the writ petitioners were appointedadmittedly at an early point of time than the appellants. The appellantshave not raised any grievance at the time of the appointment of thecandidates lower in merit on the alleged violation of Regulations 16, 17or 20. Therefore, the seniority has been rightly fixed from the date ofappointment based upon Regulation 23 of the Regulations. It is alsoargued that the Government order dated 31[st] August, 2001 is an orderto determine seniority as per the roster fixed in terms of Regulation 6.The letter dated 3[rd] May, 2005 by the State Government while grantingsanction to fill up 88 posts of Junior Engineer (Civil) specificallymentioned that reservation to the posts of Junior Engineer (Civil) shallbe in accordance with roster in the Government order dated 31[st] August,2001. Therefore, in any case, the seniority has to be fixed as per theroster prescribed in the letter dated 31[st] August, 2001.

17. We find that the method of giving appointment to the seniormost person of each category is only a fortuitus circumstance as suchappointments were made dehors the merit. Regulation 20 mandatesthe appointing authority to make the appointments from amongst thecandidates in order in which they stand in the list prepared under A

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ARegulations 16(2), 17 or 18. Any appointment made by the Nigam incontravention of the statutory Regulations cannot defeat the rights ofthe appellants only because they have not challenged the appointmentof their juniors at an earlier point of time. Regulation 23 provides thatseniority of persons appointed in any branch of service shall be madeas per substantive appointment. The appointment in Regulation 23 hasBto be read in terms of Regulation 20 mandating the manner ofappointment. Therefore, irrespective of the date of appointment, theseniority has to be fixed as per the merit of the candidates determinedby the Selection Committee.

18. However, we find that Regulation 6 itself contemplated thatCreservation of candidates belonging to SC, ST, Backward Classes andthe candidates of other categories shall be in accordance with the ordersof the Government in force at the time of recruitment. In terms of suchRegulations, the Government order dated 31[st] August, 2001 becomesapplicable to determine the extent of reservation which includes theDmethod of determining seniority as well. Apart from the statutoryRegulation 6, even the approval of the State Government to fill up 88posts specifically mentions that the reservation shall be made as perthe 100 points roster as prescribed in the Circular dated 31[st] August,2001. Admittedly, the seniority has not been framed keeping in viewthe roster circulated on 31[st] August, 2001.E

19. We do not find any merit in the argument raised by the Statethat the seniority has to be fixed as per Rule 5 of the UttarakhandGovernment Servant Seniority Service Rules, 2002. Such Rules werenot adopted to be applicable to the Nigam. The Rules were approvedby the Board of the Nigam on 24[th] September, 2007 proposing that theFprovision shall be made in the proposed service regulations but the Ruleswere made applicable in the year 2011 only. Such is the finding recordedby the High Court which is not disputed by the appellants or by thewrit petitioners. Such Rules have been framed under the proviso toArticle 309 of the Constitution and they are not applicable to a creationGunder a Statute. These Rules are applicable to government servants inrespect of whose recruitment and condition of service Rules may beor have been made by the Government under the proviso to Article309 of the Constitution. Since the employees of the Nigam are notgovernment servants nor are their service conditions governed by Rulesframed under the proviso to Article 309 of the Constitution, therefore,H

such Rules unless adopted by the Nigam cannot be extended to theemployees of the Nigam.

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20. Therefore, we find that the order of the High Court and thatof the Tribunal are not sustainable in law as the seniority list has notbeen prepared in accordance with the roster circulated on 31[st] August,2001 which is required to be mandatorily followed in terms of RegulationB6 as well with the approval of the State Government dated 3[rd] May,2005 to fill up 88 posts.

21. Consequently, the seniority list finalised on 28[th] November,2014 as also the order of the High Court dated 11[th] July, 2018 are setaside. Respondent No. 5 is directed to recast seniority of the candidatesin the order of merit by assigning their seniority as per the roster pointsgiven in Circular dated 31[st] August, 2001. With the said directions, theappeals stand disposed of.

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Kalpana K. Tripathy

Appeals disposed of.

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