AJAY KUMAR SHUKLA AND OTHERS versus ARVIND RAI AND OTHERS on 8 December 2021

SUPREME COURT REPORTS

[2021] 12 S.C.R.

AAJAY KUMAR SHUKLA AND OTHERS

v.

ARVIND RAI AND OTHERS

(Civil Appeal No(s). 5966 of 2021)

BDECEMBER 08, 2021

[DR. D.Y. CHANDRACHUD, VIKRAM NATH ANDB.V. NAGARATHNA, JJ.]

Service Law: Seniority list – Appellants working as JuniorEngineers belonging to Mechanical and Civil Streams whereasCrespondents from agricultural stream – Plea of the appellants thatin the seniority list, the department had placed the candidates ofthe three lists- Agricultural, Mechanical and Civil in the samesequence as they were received with their inter se seniority in theirrespective lists, the agricultural stream on the top, thereafterDmechanical and lastly the civil stream – Writ petition by the appellantchallenging the seniority list – Single Judge quashed the senioritylists and directed the department to draw a fresh seniority list inaccordance with Rules 1991– However, the Division Bench set asidethe order – On appeal, held: Seniority list was prepared by theDepartment in contravention to the statutory provision laid downEin Rules 1991 – Appointing Authority would be bound by thestatutory rules and any violation or disregard to the statutory ruleswould vitiate the seniority list – It would be arbitrary, de hors therules and in conflict with Arts 14 and 16 – Appointing authorityought to have prepared a combined merit list based upon theFperformance or the proficiency on the basis of the marks receivedin the selection test as prepared by the Commission – Otherwise, itwould amount to denial of the right of consideration for promotionto a more meritorious candidate – Appointing Authority erred in themanner in which the seniority list was prepared by placing the threeselect lists forwarded by the Commission on different dates one afterGthe other en bloc as per the date of receipt of three select lists –Furthermore, the delay of three to four years in filing the mattersatisfactory explained; and the non-joining of all the affected juniorengineers not fatal – Thus, the order passed by the Single Judge ofthe High Court upheld – Uttar Pradesh Government ServantsH

Seniority Rules, 1991 – rr. 5, 8 – Uttar Pradesh Minor IrrigationDepartment Subordinate Engineering Service Rules, 2009 –Constitution of India – Arts. 14 and 16(1).

Service Law: Promotion – Right to promotion – Held: Is notconsidered to be a fundamental right but consideration for promotionhas now evolved as a fundamental right – Constitution of India –Art. 14 and 16(1).

Jurisprudence: Service jurisprudence – Impleadment ofparties – Held: It is not essential to implead each and every onewho could be affected but if a section of such affected employees isimpleaded then the interest of all is represented and protected –Impleadment of a few of the affected employees would be sufficientcompliance of the principle of joinder of parties and they coulddefend the interest of all affected persons in their representativecapacity – Non-joining of all the parties not fatal.

Allowing the appeals, the Court

HELD: 1.1 There was one selection for the three streamsi.e. Agricultural, Mechanical and Civil. There is one cadre ofJunior Engineers in the Minor Irrigation Department andtherefore, there has to be one seniority list of Junior Engineers.[Para 18][1201-B-C]

Conclusion

1.2 The Appointing Authority, in fact, committed an errorin the manner in which the seniority list was prepared by placingthe three select lists forwarded by the Commission on differentdates one after the other en bloc as per the date of receipt ofthree select lists. It is not the case either of the privaterespondents, State or the Commission that appointment lettershave been issued separately as and when the select lists werereceived. In fact, the appointment letters of all the three streamswere issued in October 2001, after about 10 to 11 months of thereceipt of the third list i.e. of the Civil stream in November 2000.Apparently by an oversight, the Appointing Authority failed toprepare the combined seniority list as required under the UttarPradesh Government Servants Seniority Rules, 1991, be it Rule5 or Rule 8 with respect to the selection of the appellants andprivate-respondents. [Para 20][1203-C-E]

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A1.3 In October, 2001, when the appointment letters wereissued it carried a stipulation that the seniority would bedetermined later on as per rules. It is an admitted position thatbefore 2006, the seniority list of the appellants was not notified.In March, 2006, when the tentative list was published, it did notmention about the three select lists nor was this fact mentionedBwhen the final seniority list was published on 05.09.2006. Rather,it clearly mentioned that the seniority list had been prepared onthe basis of merit. This was in fact an incorrect statement. Theseniority list had not been prepared on the basis of merit but onthe basis of receipt of the three separate select lists one afterCthe other. As the Agricultural list was received first on 28.09.1999,all the selected candidates of agricultural stream were en blocplaced on the top, thereafter the Mechanical list was received on06.01.2000, they were placed below the Agricultural stream andlastly, the Civil stream list was received on 07.11.2000, they wereplaced at the end. [Para 25][1205-A-D]D

1.4 Rules 5 and 8 of Rules 1991 clearly mention that thereshall be one list for one selection of direct recruits. Creatingthree separate lists for one selection was contrary to theprovisions contained in Rules 5 and 8 of Rules 1991. Rules 2009clearly mention that seniority would be determined and preparedEas per 1991 Rules. Rule 5 of Rules 1991, dealt with the selectionsmade only through direct recruitment whereas Rule 8 thereofdealt with the situation where seniority list is to be prepared ofboth the direct recruits and the promotees. However, theprinciples underlined in both these Rules are the same that thereFhas to be one list for one selection, as is clear from Rule 8(2)(a)and Rule 5 of Rules 1991. [Para 26][1205-D-F]

1.5 Once it is established that the seniority list was preparedin contravention to the statutory provisions laid down in Rules1991, the seniority list could be interfered with. The AppointingGAuthority would be bound by the statutory rules and any violationor disregard to the statutory rules would vitiate the seniority list.The same would be arbitrary, de hors the rules and in conflictwith Articles 14 and 16 of the Constitution. The only exceptionwould be where there is unreasonable delay which is unexplained.[Para 27][1205-F-G]H

1.6 In the facts of the instant case, it is found from the finalseniority list of 05.09.2006 that it nowhere mentioned that therewere three separate lists of separate streams and that they werereceived on different dates. On the contrary, there was a recitaltherein and specific averment to the effect that the list had beenprepared on the basis of merit. Thus, it cannot be said that theappellants were aware of the three separate select lists dispatchedby the Commission on three different dates at the time ofpublication of final list dated 05.09.2006. [Para 28][1206-A-C]

1.7 The appellants had no occasion to know about the threeseparate lists either at the time they were dispatched by theCommission or at any time thereafter as the appointment lettersof all selected candidates of all the three streams were issuedsimultaneously under Office Order dated 08.10.2001. The orderfinalizing the seniority list of 05.09.2006 also nowhere mentionedthat three separate lists of three streams were received from theCommission and placed en bloc as received one after the other.[Para 29][1206-C-D]

1.8 At the time of notifying the tentative list on 29.12.2009,it was not stated anywhere that there were three separate listsreceived on three different dates. As such it could not be allegedthat the appellants even at that stage did not file objectionsregarding preparation of common seniority list. It was only whenthe final seniority list was published on 05.03.2010 and in theorder finalizing the list, it was mentioned by the department thatthere were three separate lists received on three separate datesand in that sequence the combined seniority was prepared. Thus,it is for the first-time that appellants came to know of theerror on publication of the final seniority list on 05.03.2010.[Paras 30][1206-E-F]

1.9 The respondents have not been able to show any materialwhich could clearly indicate that the appellants had knowledge ofthree separate lists and the preparation of the seniority list on itsbasis. [Para 31][1206-F-G]

1.10 After coming of Rules 2009, fresh exercise wasundertaken for preparation of seniority list. A tentative list wasnotified by the Office Order dated 29.12.2009. This Office Ordermentions that the seniority list has to be prepared according to AB

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A1991 Rules. While dealing with the finalization of this tentativelist, vide office order dated 05.03.2010, there is reference todisposal of an objection by MC and MK in which they hadapparently sought clarification regarding the requisition send tothe Commission and other related aspects. In paragraph 11 ofthe Office Order, it is mentioned that the Commission hadBforwarded the three lists of the Agriculture, Mechanical and Civilstreams separately on 06.01.2000, 27.01.2000 and 07.11.2000respectively. It further mentioned that it was in that sequencei.e. the date of receiving that the combined seniority was assessed.Thus, again the seniority list was finalized in the same sequenceCas the three lists have been received and in that order. It isthereafter that the representations were made that the senioritylist of the direct recruits of 2001 was wrongly prepared contraryto the Rules, however, when no action was taken, RN and fourteenothers approached the High Court which was within a period oftwo to two and half years and till such time they had been pursuingDtheir representation after office order dated 05.03.2010. Thus, itis clear that in the first contingency or in the second contingency,the appellants cannot be found at fault. The Division Benchcommitted an error in holding that the claim lodged by theappellant suffered from delay and laches. [Para 34][1208-A-E]

E1.11 The plea to defend the seniority list prepared contraryto the statutory provisions on the ground of delay would be adifficult proposition. Apart from the submission of the appellantsthat there is no delay as they came to know of the three separatelists only in March, 2010, even if it is assumed that there was

Fsome delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, suchseniority list cannot be sustained or defended on the ground ofdelay of five years. [Para 35][1208-F-G]

1.12 The next promotion of Junior Engineers in the higherGgrade is to the post of Assistant Engineer. In the cadre of AssistantEngineer, there are no separate streams but only one cadre ofAssistant Engineers. It is the seniority list of the cadre of JuniorEngineers which would be the feeder cadre for the post ofAssistant Engineers. The Junior Engineers of Agricultural streamof the selection of the year 2001, would have direct march overH

the Junior Engineers selected in the same selection of theMechanical and Civil streams, even though the overall merit ofsome or many of Agricultural stream Junior Engineers could belower than some or many of the Engineers of the Mechanical andCivil streams. The appointing authority ought to have prepareda combined merit list based upon the performance or theproficiency on the basis of the marks received in the selectiontest as prepared by the Commission. Otherwise, it would amountto denial of the right of consideration for promotion to a moremeritorious candidate as against a candidate having lesser merit.Right to promotion is not considered to be a fundamental rightbut consideration for promotion has now been evolved as afundamental right. [Para 36][1208-G-H; 1209-A-C]

Director, Lift Irrigation Corporation Ltd. and Othersvs. Pravat Kiran Mohanty and Others (1991) 2 SCC295:[1991] 1 SCR 341; Ajit Singh vs. State of Punjab(1999) 7 SCC 209:[1999] 2 Suppl. SCR 521; MajorGeneral H.M. Singh, VSM vs. UOI and Another (2014)3 SCC 670:[2014] 1 SCR 270 – referred to.

1.13 If the seniority list is allowed to be sustained then theengineers who are more meritorious in the Mechanical and Civilstreams than the Junior Engineers of the Agricultural streamwould be deprived of their right of being considered for promotionand in fact their right would accrue only after all the JuniorEngineers of the Agricultural stream selected in the sameselection are granted promotion. For these reasons also theseniority list in question must go. [Para 40][1212-C-D]

1.14 The instant case is a case of preparation of senioritylist and that too in a situation where the appellants (original writpetitioners) did not even know the marks obtained by them ortheir proficiency in the examination conducted by theCommission. The challenge was on the ground that the Rules onthe preparation of seniority list had not been followed. Therewere 18 private respondents arrayed to the writ petition. Theoriginal petitioners could not have known who all would beaffected. They had thus broadly impleaded 18 of such Junior A

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AEngineers who could be adversely affected. In matters relatingto service jurisprudence, time and again it has been held that itis not essential to implead each and every one who could beaffected but if a section of such affected employees is impleadedthen the interest of all is represented and protected. In viewthereof, impleadment of a few of the affected employees wouldBbe sufficient compliance of the principle of joinder of parties andthey could defend the interest of all affected persons in theirrepresentative capacity. Non-joining of all the parties cannot beheld to be fatal. [Para 47][1214-G-H; 1215-A-C]

Ranjan Kumar and Others vs. State of Bihar and OthersC(2014) 16 SCC 187 – distinguished.

Prabodh Verma and others vs. State of Uttar Pradeshand others (1984) 4 SCC 251:[1985] 1 SCR 216; Stateof Uttaranchal vs. Madan Mohan Joshi and others(2008) 6 SCC 797:[2008] 8 SCR 591; Indu ShekharDSingh and others vs. State of U.P. and others (2006) 8SCC 129:[2006] 1 Suppl. SCR 497; Tridip KumarDingal and others vs. State of West Bengal and others(2009) 1 SCC 768:[2008] 15 SCR 194; Mukul KumarTyagi and Ors. vs. The State of Uttar Pradesh and Ors.E(2020) 4 SCC 86:[2019] 16 SCR 1145 – referred to.

1.15 The Division Bench also dealt with an issue which wastotally irrelevant and alien to the adjudication of the presentappeals. In the judgment of the Division Bench there is areference to an issue where a party takes calculated chances ofFparticipating in selection/appointment process and later turnsaround after being unsuccessful would be hit by doctrine ofestoppel. This issue was not at all relevant. The said issue doesnot arise in the present case. The appellants/original writpetitioners had never challenged the selection process. Thechallenge was only to preparation of the seniority list.G[Para 48][1215-C-E]

1.16 The Division Bench in a generalized and vague mannerrecorded that the authorities relied upon by the Single Judgewere rendered in a different fact situation and were not applicable.The Division Bench did not consider the judgments relied uponH

by the Single Judge but only made this passing remarks. Theauthorities relied upon by the Single Judge were relevant andcorrectly applied. [Para 49][1215-E-G]

1.17 The Division Bench proceeded to deal with the delaystating it to be 11 years, the basis for calculation of 11 years wasthat the seniority list of 2006 was challenged by way of amendmentby the appellants in the year 2017 and therefore there was a delayof 11 years. This discussion by Division Bench also cannot besustained. The first seniority list was prepared in 2006. It wasnot disclosed as to how the seniority list has been prepared bytreating the three separate lists independently on their meritsbut not as a result of combined merit of the three lists. It wasonly in 2010 that the appellants came to know of the fallacy andsoon thereafter they challenged the seniority list of 2010. Evenif, they did not challenge the seniority list of 2006, 2010 senioritylist could always be revisited, reviewed and prepared afresh, ifthe same was quashed. The appellants could not have been atany loss even if they had not challenged the 2006 seniority list.[Para 50][1215-G-H; 1216-A-B]

1.18 The reasoning given regarding issue of single selectionis also not sustainable in view of Rules 1991 as also Rules 2009.[Para 51][1216-B-C]

1.19 The seniority inter se of direct recruits to one selectionhas to be one combined list based on the performance and themarks awarded in the examination prepared either by theCommission or the Committee, as the case may be. True, theSingle Judge, in the operative portion mentioned that a freshseniority list be prepared in accordance with Rule 5 andapparently did not consider the effect of Rule 8, would not vitiatethe judgment inasmuch as the basis for preparation of the senioritylist of direct recruits was the same in both the Rules. There isno lis inter se between direct recruits and promotees.[Para 52][1216-D-E]

1.20 The Single Judge was right in setting aside the finalseniority list and directing the appointing authority for preparationof fresh seniority list in accordance with Rules 1991, be it Rule 5or Rule 8 thereof. The impugned judgment of the Division Bench A

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Aof the High Court is set aside and that of the Single Judge ismaintained. [Paras 53, 54][1216-F-G]

Shiba Shankar Mohapatra vs. State of Orissa (2010)12 SCC 471:[2009] 15 SCR 866; Dayaram AsanandGursahani vs. State of Maharashtra and others (1984)B3 SCC 36:[1984] 2 SCR 703; B.S. Bajwa and anothervs. State of Punjab and others (1998) 2 SCC 523:[1997]6 Suppl. SCR 451; Malcom Lawrence Cecil D’Souzavs. Union of India and others (1976) 1 SCC 599:[1975]0 Suppl. SCR 409; R.S. Makashi and others vs. I.M.Menon and others (1982) 1 SCC 379:[1982] 2 SCRC69 – referred to.

Case Law Reference

From the Judgment and Order dated 04.12.2019 of the High Courtof Judicature at Allahabad in Special Appeal No. 897 of 2019.

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C.A. Nos. 5969, 5967, 5968 of 2021

Siddhartha Dave, Sr. Adv., Ashok Kumar Singh, Shantwanu Singh,Ms. Pragya Singh, Abhishek Khare, Ms. Preetika Dwivedi, UtkarshSrivastava, Mrs. Revathy Raghavan Advs. for the Appellants.

Gopal Sankaranarayanan, Sr. Adv., Rohit Amit Sthalekar, SankalpNarain, Ms. Ishita, Parmanand Pandey, Ajay Kumar Singh, UtkarshPandey, Utkarsh Srivastava, Ms. Ila Shikhar Sheel, Mrs. Nanita Sharma,Siddharth, Amit Kumar Agrawal, Ashish Choudhury, Navin KumarSehrawat, Vishnu Kant, Advs. for the Respondents.

The Judgment of the Court was delivered by VIKRAM NATH, J.

1. The present set of appeals preferred by the original writpetitioners (before the High Court) assails the correctness of thejudgement and order dated 04.12.2019 passed by Division Bench of theAllahabad High Court in Special Appeal No. 819 of 2019, in betweenRajesh Kumar Singh and Another vs. Rajeev Nain Upadhyay and24 Others whereby the Division Bench allowed the appeal, set asidethe judgment and order of the learned Single Judge and dismissed thewrit petition.

Background:

2. The appellants, who were working as Junior Engineers in theDepartment of Minor Irrigation, State of Uttar Pradesh, aggrieved bythe final seniority list dated 05.03.2010 challenged the same by way ofWrit Petition No. 53123 of 2012, being Rajeev Nain Upadhyay andOthers vs. State of Uttar Pradesh and Others. The appellants(Original Writ Petitioners) belong to the Mechanical and Civil Streamswhereas Private Respondents are from the Agriculture Stream.

3. Originally when the petition was filed, challenge was only tothe seniority list published on 05.03.2010. However, during the pendencyof the petition by way of amendment, challenge was also made to theearlier seniority list published on 05.09.2006. The said amendment wasallowed. Thus, the reliefs claimed post amendment, read as follows:

“Prayer

Original prayer in the writ petition before the high court:

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AIt is, therefore, most respectfully prayed that this Hon’ble courtmay be pleased to issue:

i. A writ, order or direction in the nature of certiorari quashing theoffice order dated 05.03.2010 issued by the Chief Engineer (MinorIrrigation), U.P. Lucknow and the seniority list appended theretoB(Annexure 12 to the writ petition).

ii. A writ, order or direction of a suitable nature commanding therespondents to prepare and publish a revised seniority list inconformity with UP Government Servant Seniority Rule 1998within a period to be specified by this Hon’ble court.

Ciii. A writ, order or direction of a suitable nature restraining therespondents from taking any action on the basis of impugned officeorder.

iv. A writ, order or direction in the nature of which this Hon’blecourt may deem fit and proper under the circumstances of theDcase.

v. Award cost to the humble petitioner throughout of the presentwrit petition.

Prayer added subsequently to the original prayer in writ petitionbefore the High Court:EThat the following prayers may be added after prayer no (i) asprayer no. i-a) & i-b)

i-a) Certiorari quashing for the record to quash the seniority listdated 5.9.2006.F

i·b) mandamus restraining the respondents from giving any benefitsto the respondents on the basis of the seniority list dated 5.9.2006.”

4. The learned Single Judge, vide judgement and order dated14.05.2019, allowed the writ petition, quashed the seniority lists dated05.09.2006 and 05.03.2010 and further issued a writ of mandamusGdirecting the respondents to draw a fresh seniority list in accordancewith Rule 5 of the Uttar Pradesh Government Servants SeniorityRules, 1991 (for short “Rules 1991”). It was also provided that anypromotions made during the pendency of the writ petitions would not beinterfered with but would remain subject to the fresh seniority list to be H

prepared in accordance with Rule 5 of Rules 1991. Learned SingleJudge recorded the following findings to arrive at the above conclusions:

a) After examining the relevant rules and also the scheme ofdetermination of the seniority, it was recorded that the existingseniority list would not only be prejudicial to the interest of juniorengineers belonging to civil and mechanical branch but would alsoaffect their chances of promotion. It would also be generatingheart burn, adversely affecting the administration and working ofthe entire department. Paragraph 21 of the judgment of learnedSingle Judge is reproduced below:

“21. The scenario noticed above would not only be prejudicialto the interests of Junior Engineers belonging to Civil· andMechanical Engineering Stream as it would affect their chancesof promotion and generate heart-burning but would adverselyaffect the requirement of work to be managed by thedepartment also.”

b) The objection taken by the respondents to the original writpetition regarding the petition suffering from delay and laches,was elaborately dealt with. The law on the point was dealt with inabundance and thereafter it was recorded that a delay of three tofour years, in a matter relating to seniority dispute would not befatal. Reliance was placed upon the judgment of Shiba ShankarMohapatra vs. State of Orissa[1]. It was held that in the presentcase, there was no delay or laches.

c) It was also recorded that once there was a serious challenge tothe determination of seniority on the ground that the seniority listhad been prepared de hors the rules, writ petition was required tobe considered on merits.

d) Three different lists were forwarded by the Commission relatingto the same selection and therefore, a common inter se merit ofthe candidates from the three lists ought to have been preparedand accordingly seniority ought to have been fixed.

e) The Competent Authority and the State committed a seriouserror of law in determining the seniority list merely on the basis ofthe date of receipt of the three select lists arising out of the sameselection. Such an action could neither be supported in law or on 1 (2010) 12 SCC 471

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Afacts nor the task of determining seniority be left to such a fortuitouscircumstance.

f) The date of dispatch of select list, by no stretch of imaginationcould be a determining factor for preparing the seniority list. TheCompetent Authority and the State have acted contrary to theBspecific provisions contained in Rules 1991. As such their actionis arbitrary and also against the constitutional spirit of equalopportunity in matters of public employment.

5. The judgment of the learned Single Judge was assailed by wayof intra court appeal registered as Special Appeal No. 819 of 2019. TheCDivision Bench, vide judgment and order dated 04.12.2019, allowed theappeal, set aside the judgment of the learned Single Judge and dismissedthe writ petition. This judgment has given rise to the present set ofappeals. The Division Bench recorded the following findings to arriveat the above conclusions:

Da) There was extraordinary delay on the part of the original writpetitioners in approaching the Court inasmuch as the seniority listof 2006 which had formed the basis of the 2009 seniority list, wasnot challenged within a reasonable time.

b) The original writ petitioners having not challenged the finalEseniority list dated 05.09.2006 principally accepted the same assuch their claim would be barred by principle of acquiescence.

c) All the affected Junior Engineers having not been impleadedwould be fatal on the principle of non-joinder of necessary parties.

d) The appellants having participated in selection/appointmentFprocess, later on, cannot challenge the process as such actionwould be hit by doctrine of estoppel and acquiescence.

e) The learned Single Judge was not right in directing forpreparation of the seniority list in accordance with Rule 5 of Rules1991 as it would be Rule 8 which would be applicable and notGRule 5.

Facts:

6. The factual matrix relevant for adjudication of this set of appeals are:

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a) The Chief Engineer, Department of Minor Irrigation send arequisition dated 18.06.1998 to the Uttar Pradesh Public ServiceCommission (for short “the Commission”) requesting forrecruitment of 206 posts of Junior Engineers in the Departmentof Minor Irrigation. These posts were further divided inter sebetween agriculture, mechanical and civil streams in the ratio of50:30:20 respectively.

b) The Commission issued an Advertisement No. 3 of 1998-1999,inviting applications for the post of Junior Engineers. Theexamination process was in two tiers; a screening test which washeld on 18.10.1998 and after qualifying this screening test, therewas an interview to be conducted by the Commission. The resultof the screening test was declared on 06.01.1999 and thereafter,interviews were conducted by the Commission from 07.06.1999to 26.06.1999 with respect to candidates who were holding aDiploma in Agricultural Engineering. Insofar as candidates holdingDiploma in Mechanical Engineering were concerned, theirinterviews were held between 24.06.1999 to 02.07.1999 and lastlyfor candidates holding Diploma in Civil Engineering, their interviewswere held between 07.07.1999 to 22.12.1999. After finalising theresults, the Commission forwarded three separate select lists tothe Minor Irrigation Department of the State Government, asfollows:

i) On 28.09.1999, the select list of candidates pertaining toAgricultural Engineering; ii) On 06.01.2000, the select list of candidates pertaining toMechanical Engineering and,

iii) Lastly on 07.11.2000, the select list of candidates pertainingto Civil Engineering.

Note: There is some discrepancy regarding the dates of the threelists being forwarded to the department. The Commission, in itsaffidavits filed, has given different dates. However, the factremains that the sequence of sending the lists of three differentstreams remains the same i.e. Agriculture, Mechanical and Civilin that order. In one of the affidavits, the three dates are06.01.2000, 27.01.2000 and 07.11.2000 for Agriculture,Mechanical and Civil Junior Engineers. In another affidavit it is AB

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28.09.1999, 06.01.2000 and 07.11.2000 in the same order.Hereinafter we have dealt these dates as 28.09.1999, 06.01.2000and 07.11.2000 respectively.

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c) Based upon the above three select lists forwarded by theCommission, appointment letters were issued on 08.10.2001. Theappointment letter clearly indicated that the issue regarding senioritywould be decided later on. Pursuant to the appointment lettersdated 08.10.2001, the petitioner and private respondents joined.

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d) In 2006, a tentative seniority list was published vide office orderdated 17.03.2006 with respect to all the Junior Engineers appointedafter 01.01.1989. Later on, vide office order dated 05.09.2006, afinal seniority list was published. The last sentence of the saidoffice order reads that the seniority of the candidates selected bythe Commission has been kept in their serial of merit.

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e) The department took a fresh exercise of preparing the senioritylist in 2009 as for the first time Rules relating to Junior Engineersof the Minor Irrigation Department were framed. Reference tothese Rules would be made a little later.

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f)Accordingly, a provisional seniority list was published vide officeorder dated 29.12.2009 inviting objections. The objections receivedEwere considered and vide office order dated 05.03.2010, a finalseniority list was published. In the latter part of paragraph 11 ofthe office order dated 05.03.2010, reference was made that theCommission had sent three separate lists i.e. of Agricultural streamon 28.09.1999, Mechanical stream on 06.01.2000 and Civil streamon 07.11.2000. The department had placed the candidates of theFthree lists in the same sequence as they were received with theirinter se seniority in their respective lists. For example, if therewere 30 candidates in the Agricultural stream, all those candidateswere placed on top at serial nos. 1 to 30 in the same order as itwas received, if 20 candidates were in the Mechanical list thenGthey were placed en bloc in the same serial as received from theCommission from serial nos. 31 to 50 and, if there were 50 in theCivil stream, they were placed below Mechanical with serialnumbers 51 to 100 again in the same sequence as forwarded bythe Commission.

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g) The appellants came to know of this mode of preparation ofthe seniority list only after the publication of the final list on05.03.2010 as prior to it they were under the bona fide belief thatdepartment had prepared seniority list inter se between all threestreams as per the selection and result conveyed by theCommission. They were thus compelled to make representationsto correct the seniority list by considering the inter se merit of allthe three streams i.e. Agricultural, Mechanical and Civil on thebasis of the marks obtained in their examinations and forwardedby the Commission rather than preparing the seniority list in theorder of receipt of the select list of the three streams. When noheed was paid to their representations, the appellants approachedthe High Court by way of Writ Petition No. 53123 of 2012.

h) As already recorded above, the Single Judge allowed the writpetition whereas the Division Bench dismissed the writ petitiongiving rise to the present set of appeals.

Statutory Provisions: Rules

7. Before we proceed further, a broad outline of the relevant rulesapplicable for preparation of seniority may be referred to. First andforemost and most relevant is Rules 1991 framed under Article 309 ofthe Constitution. This was in existence at the time when the selection ofthe appellants and respondents was made in 1998-1999. Part II of thesaid Rules deals with the determination of the seniority. Rule 5 thereofprovides for seniority where appointments are made only by directrecruitment. The said Rule is reproduced hereunder:

“5. Seniority where appointments by direct recruitment only. -Where according to the service rules appointments are to bemade only by the direct recruitment the seniority inter se ofthe persons appointed on the result of any one selection, shallbe the same as it is shown in the merit list prepared by theCommission or the Committee, as the case may be :

Provided that a candidate recruited directly may lose hisseniority, if he fails to join without valid reasons when vacancyis offered to him, the decision of the appointing authority asto the validity of reasons, shall be final :

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Provided further that the persons appointed on the result ofa subsequent selection shall be junior to the persons appointedon the result of a previous selection.

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Explanation. - Where in the same year, separate selectionsfor regular and emergency recruitment, are made, the selectionBfor regular recruitment shall be deemed to be the previousselection.”

8. A plain reading of the above provision stipulates that inter seseniority of the persons appointed as a result of ONE SELECTIONwould be on the basis of the merit list prepared by the Commission orCthe Committee, as the case may be. The Commission means the UttarPradesh Public Service Commission and the Committee means theCommittee constituted to make selections for appointment. In the presentcase, it was the Commission which had made the selections.

9. Rule 8 of Rules 1991 provides for preparation of seniority listDwhere appointments were made both by promotion and direct recruitment.The said Rule reads as under:

“8. Seniority where appointments by promotion and directrecruitment. - (1) Where according to the service rulesappointments are made both by promotion and by directrecruitment, the seniority of persons appointed shall, subjectto the provisions of the following sub-rules, be determinedfrom the date of the order of their substantive appointments,and if two or more persons are appointed together, in theorder in which their names are arranged in the appointmentorder:

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Provided that if the appointment order specifies a particularback date, with effect from which a person is substantivelyappointed, that date will be deemed to be the date of order ofsubstantive appointment and, in other cases, it will mean ofissuance of the order:

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Provided further that a candidate recruited directly may losehis seniority, if he fails to join without valid reasons, whenvacancy is offered to him the decision of the appointingauthority as to the validity of reasons, shall be final.

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(2) The seniority inter se of persons appointed on the resultof any one selection- (a)through direct recruitment, shall be the same as it isshown in the merit list prepared by the Commissionor by the Committee, as the case may be; (b)by promotion, shall be as determined in accordancewith the principles laid down in Rule 6 or Rule 7, asthe case may be, according as the promotion are tobe made from a single feeding cadre or severalfeeding cadres.

(3) Where appointments are made both by promotion and directrecruitment on the result of any one selection the seniority ofpromotees vis-a-vis direct recruits shall be determined in acyclic order (the first being a promotee) so far as may be, inaccordance with the quota prescribed for the two sources.

Illustrations

(1) Where the quota of promotees and direct recruits is in theproportion of 1 : 1 the seniority shall be in the followingorder- First...PromoteeSecond...Direct recruits and so on.

(2) Where the said quota is in the proportion of 1 : 3 theseniority shall be in the following order- First... PromoteeSecond to Fourth... Direct recruitsFifth... PromoteeSixth to eight... Direct recruits and so on:Provided that-

(i) where appointment from any source are made in excess ofthe prescribed quota, the persons appointed in excess of quota

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Ashall be pushed down, for seniority, to subsequent year oryears in which there are vacancies in accordance with thequota;

(ii) where appointments from any source fall short of theprescribed quota and appointment against such unfilledBvacancies are made in subsequent year or years, the personsso appointed shall not get seniority of any earlier year butshall get the seniority of the year in which their appointments,are made, so however, that their names shall be placed at thetop followed by the names, in the cyclic order of the otherappointees;C(iii) where, in accordance with the service rules the unfilledvacancies from any source could, in the circumstancesmentioned in the relevant service rules be filled from the othersource and appointment in excess of quota are so made, thepersons so appointed shall get the seniority of that very yearDas if they are appointed against the vacancies of their quota.”

10. The above Rule is pressed into service where a combined listof direct recruits and promotees is to be prepared. However, even thisRule clearly provides in sub-Rule 2(a) that the seniority inter se of personsappointed on the result of any ONE SELECTION through directErecruitment shall be the same as it is shown in the merit list prepared bythe Commission or by the Committee, as the case may be. The languageused and the manner provided is identical to Rule 5 where only senioritylist of direct recruits is dealt with.

11. Part III of Rules 1991 deals with the preparation of seniorityFlist. According to Rule 9, as soon as after the appointments are made,the appointing authority shall prepare a tentative seniority list, the samewould be circulated amongst the persons concerned inviting objections.The appointing authority, after disposing of the objections, would preparefinal seniority list. Rule 9 is reproduced hereunder:

G“9. Preparation of seniority list. –

(1) As soon as may be after appointments aremade to a service, the appointing authority shallprepare a tentative seniority list of the personsappointed substantively to the service inHaccordance with the provisions of these rules.

(2) The tentative seniority list shall be circulatedamongst the persons concerned invitingobjections by a notice of reasonable period,which shall not be less than seven days from thedate of circulation of the tentative seniority

(3) No objections against the vires or validityof these rules shall be entertainable.

(4) The appointing authority shall afterdisposing off the objection, by a reasoned order,issue a final seniority list.

(5) It shall not be necessary to prepare a senioritylist of the cadre to which appointments are madeonly by promotion from a single feedings cadre.”

12. In the year 2009, the Uttar Pradesh Minor IrrigationDepartment Subordinate Engineering Service Rules, 2009 (forshort “Rules 2009”) came into force on 16.10.2009 again framed underArticle 309 of the Constitution. Part V of Rules 2009 provided for theprocedure for recruitment which comprised of Rules 14 to 17. Rule15(4) provided that the Commission would prepare a list of candidates inorder of their proficiency as disclosed by the aggregate of marks obtainedby each candidate in the written examination as well as interview andaccordingly recommend such number of candidates as they consider fitfor appointment. After preparation of the said list, the Commission wouldforward it to the Appointing Authority. Sub-Rule (5) of the Rule 15further provides that if recruitment was being made for more than onebranch of Engineering then in such case, the Commission would preparea combined select list of candidates in order of their proficiency asdisclosed by the aggregate of marks obtained by the candidates in thewritten examination and interviews accordingly and shall also forwardthe same list to the Appointing Authority in addition to the list forwardedunder Rule 15(4). Rules 14-17 of Rules 2009 are reproduced below: - “Rule 14 Determination of vacancies The appointing authority shall determine and intimate to theCommission the number of vacancies to be filled during the courseof the year of recruitment as also the number of vacancies to bereserved for candidates belonging to the Scheduled Castes,Scheduled Tribes and other categories under rule 6.

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ARule 15 Procedure for Direct Recruitment

(1) Applications for permission to appear in the competitive examshall be called by the Commission in the prescribed form publishedin the advertisement issued by the Commission.

(2) No candidate shall be admitted to the examination unless heholds a certificate of admission, issued by the Commission.

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(3) After the results of the written examination have been receivedand tabulated, the Commission shall, having regard to the needfor securing due representation of the candidates belonging to theScheduled Castes, Scheduled Tribes and other categories inaccordance with rule 6, summon for interview such number ofcandidates as have come up to standard fixed by the Commissionin this respect. The marks awarded to each candidate at theinterview shall be added to the marks obtained by him in the writtenexamination.

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(4) The Commission shall prepare a list of candidates in order oftheir proficiency as disclosed by the aggregate of marks obtainedby each candidate at the written examinations and interview andrecommend such number of candidates as they consider fit forappointment. If two or more candidates obtain equal marks in theaggregate, the name of the candidate obtaining higher marks inthe written examinations shall be placed higher in the list. If twoor more Candidates obtain equal marks in the written examinationalso, the name of the candidate a senior in age shall be placedhigher in the list. The Commission shall forward the list to theappointing authority.

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(5) If the recruitment is being made in more than one branch ofEngineering as specified in clause (1) of rule 5, then in such theCommission shall also prepare a combined list of candidates inorder of the proficiency as disclosed by the aggregate of marksobtained by each candidate in written examination and interviewGand shall also forward the same to the appointing authority alongwith the list under sub rule (4)

Rule 16 Procedure for recruitment by promotion

Recruitment by promotion shall be made on the basis of senioritysubject to the rejection of unfit in accordance with the Uttar H

Pradesh Promotion by Selection in Consultation with the PublicService Commission (Procedure) Rules, 1970, as amended fromtime to time.

Rule 17 Combined Select list

If, in any year of recruitment, appointments are made both bydirect recruitment and by promotion, a combined select list shallbe prepared by taking the names of the candidates from therelevant lists, in such manner that prescribed percentage ismaintained, the first name in the list being of the person appointedby promotion.”Rule 21 Seniority Seniority of the persons substantively appointed in any categoryof posts in the service shall be determined in accordance with theUttar Pradesh Government Servants Seniority Rules 1991, asamended from time to time.

13. Apart from the above, Rule 21 thereof clearly provided thatthe seniority of all persons substantively appointed shall be determinedas per Rules 1991. Another relevant aspect of the said Rules 2009 wasthat all the three branches i.e. Agriculture, Civil and Mechanical wouldtogether constitute one cadre of Subordinate Engineering Service. Rule21 is reproduced hereunder:

Rule 21 Seniority

Seniority of the persons substantively appointed in any categoryof posts in the service shall be determined in accordance with theUttar Pradesh Government Servants Seniority Rules 1991, asamended from time to time.

14. Before Rules 2009 of the Minor Irrigation Department, therewas another set of Rules framed in 1991 called the Uttar PradeshEngineering Service (Minor Irrigation Department) Rules, 1991.These Rules dealt with the recruitment of Assistant, Executive,Superintendent and Chief Engineer of the department but not of JuniorEngineer. As reference to these Rules has been made in the petitionthey have been mentioned, but may not be of much relevance.

15. On behalf of the appellants Shri Siddarth Dave, learned seniorcounsel and Ms Preetika Dwivedi, learned counsel have madesubmissions. On behalf of the private respondents Shri GopalSankaranarayanan, learned senior counsel and Shri Rohit Sthalekar, A

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Alearned counsel have addressed the Court. Learned counsel for theState of Uttar Pradesh and learned counsel for the Commission havealso made their respective submissions.

Appellants’ case:

16. On behalf of the appellants, broadly the submissions made areBgiven below:

a)There is no delay on the part of the appellants in approachingthe Court, as they learnt for the first time in 2010 when the finalseniority list was published on 05.03.2010 that there were threeseparate select lists forwarded by the Commission and based uponCthe date of the receipt of such select list, the seniority list has beenprepared, which was contrary to the statutory rules.

b)As the challenge was to the decision-making process in makingthe seniority list contrary to the 1991 Seniority Rules and Rules2009, it was submitted that it was not necessary to implead all theDaffected Engineers. In fact 18 of such affected Engineers werealready impleaded in the writ petition and therefore, for all theaffected Junior Engineers, their interests were already represented.

c)The second seniority list of 2009-2010 had to be prepared asRules 2009 had come into force which required drawing up of aEfresh seniority list. A fresh seniority list having been published,the earlier seniority list would lose its significance. The challengeto the subsequent seniority list was within reasonable period. Assuch, the plea of delay raised by the respondents, would not haveany substance.

FRespondents’ Case:

17. On behalf of the respondents, the submission of learned counsel are:

(a) that the original writ petitioners i.e. appellants had approachedthe Court with extraordinary delay and therefore, their claim was notGentitled to be entertained and the Division Bench of the High Courtrightly upheld the said submission.

(b) they sought to justify the judgment of the Division Bench forthe same reasons as recorded by the Division Bench; H

(c) on merits it is submitted that the seniority list had been preparedin accordance with Rules 1991 and Rules 2009.

(d) there is no violation of any statutory provision in preparationof the seniority lists either of 2006 or 2010.

Discussion:

18. It is an admitted position that there was one selection for thethree streams i.e. Agricultural, Mechanical and Civil. It is also an admittedfact that there is one cadre of Junior Engineers in the Minor IrrigationDepartment and therefore, there has to be one seniority list of JuniorEngineers. The written examination conducted by the Commissioncomprised of two papers, one compulsory for all streams and the secondpaper of the specific stream of Engineering whether Agricultural,Mechanical or Civil. So, in effect, there was one examination. Thereafter,interviews were conducted. The Commission, in its affidavits dated07.04.2019 and 13.05.2019 filed before the High Court, had clearly statedthat there was one selection for one examination. However, on accountof some litigation and stay granted by the High Court the list of thestream of the Civil Engineering was sent much later after about 10 to 11months. Commission also admitted in its supplementary counter affidavitbefore the High Court that it had not prepared a combined merit list ofall the three streams but had left it for the Appointing Authority to preparethe same. For sake of accuracy, paragraphs 6, 8, 9 and 10 of thesupplementary counter affidavit dated 07.04.2019 filed on behalf of theCommission are reproduced below:

“6. That it is noteworthy to state that during the selection processagainst the vacancies available in the Civil Branch, stay orderdated 01.03.2000 was passed by the Lucknow bench of thisHon’ble Court in a writ petition no. l066 of 2000, Siyaram andothers versus State of U.P. and others and therefore in complianceof order dated 01.03.2000, recommendation was (sent to thedepartment at a belated stage i.e. on 07 .11.2000.

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8. That since the required educational qualification was differentfor all three branches, therefore the recruitment was doneseparately and thereafter the lists/recommendations were sentseparately to the department in respect of selected candidates.

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9. That it is further submitted that recruitment on the post of juniorengineer is done from two main sources i.e. direct recruitmentand departmental promotion therefore the inter-se seniority listshall be finalized in accordance with rule 8 of U.P. GovernmentServant Seniority Rules 1991. Therefore, the seniority list of thepetitioners shall be finalized by the minor irrigation departmentonly and there is no role of the answering respondent in preparationof seniority list by the minor irrigation department.

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10. That it is further submitted that the preparation and publicationof the seniority list of the junior engineers is the job of the concerneddepartment and if any discrepancy occurs, the concernedCdepartment can clarify the same.”

19. Further paragraphs 3 to 7 of the second supplementary counteraffidavit dated 13.05.2019 filed by the Commission read as under:

“3. That it may be submitted before this Hon’ble Court that onthe basis of requisition for recruitment of junior engineers for threebranches i.e. Agriculture, civil and Mechanical in ratio of 50:30:20,made by the minor irrigation department, the answering respondentissued advertisement No. 3/1998-99, whereby applications wereinvited from those candidates having requisite qualification in therelevant trade.

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4. That it is categorically mentioned that the process of ‘electionfor all the three trades i.e. Civil, Mechanical and Agricultural wasthe same. There was a screening test conducted on 18. 10. 1998and thereafter the qualified candidates were called for interviewas per the rules and regulations.

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5. That for the candidates who were called for interview in respectof Agriculture, Civil and Mechanical branch; the recruitmentprocess was proceeded with, an interview was conductedrespectively and out of said three1 branches, candidates wereselected against the vacancies which were available in AgriculturalGand Mechanical Branch and select lists were sent to the departmenton 28.09. 1999 and 06.01.2000 respectively.

6. That it is noteworthy that during the selection process againstthe vacancies available in the Civil Branch, stay order date1.03.2000 was passed by the Lucknow bench of this Hon’ble H

Court in Writ Petition no. l066 of 2000, Siyaram and others versusState of U.P. and others and therefore in compliance of order -dated 01.03.2000 recommendation was sent to the department ata belated stage i.e. on 07.11.2000.

7. That further, the Commission has been able to trace the recordsof the selection process for all three branches i.e. Original MarkSheet, Merit list etc. and the Commission is in a position to producethe same before the Hon’ble Court, as and when directed.”

20. The Appointing Authority, in fact, committed an error in themanner in which the seniority list was prepared by placing the threeselect lists forwarded by the Commission on different dates one afterthe other en bloc as per the date of receipt of three select lists. It is notthe case either of the private respondents, State or the Commission thatappointment letters have been issued separately as and when the selectlists were received. In fact, the appointment letters of all the threestreams were issued in October 2001, after about 10 to 11 months of thereceipt of the third list i.e. of the Civil stream in November 2000.Apparently by an oversight, the Appointing Authority failed to preparethe combined seniority list as required under 1991 Seniority Rules, be itRule 5 or Rule 8 with respect to the selection of the appellants andprivate-respondents.

21. We may now discuss the law on the point regarding delay inapproaching the court and in particular challenge to a seniority list. Thelearned Single Judge had placed reliance on a judgment of this Court inthe case of Shiba Shankar Mohapatra vs. State of Orissa (supra).Dr. B.S. Chauhan, J., after considering the question of entertaining thepetition despite long standing seniority filed at a belated stage discussedmore than a dozen cases on the point including Constitution Benchjudgments and ultimately in paragraph 30 observed that a seniority listwhich remains in existence for more than three to four years unchallengedshould not be disturbed. It is also recorded in paragraph 30 that in casesomeone agitates the issue of seniority beyond period of three to fouryears he has to explain the delay and laches in approaching theadjudicatory forum by furnishing satisfactory explanation. Paragraph 30is reproduced below: - “30. Thus in view of the above, the settled legal proposition thatemerges is that once the seniority had been fixed and it remains in A

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Aexistence for a reasonable period, any challenge to the same shouldnot be entertained. In K.R. Mudgal, this Court has laid down, incrystal clear words that a seniority list which remains in existencefor 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4years is a reasonable period for challenging the seniority and incase someone agitates the issue of seniority beyond this period,Bhe has to explain the delay and laches in approaching theadjudicatory forum, by furnishing satisfactory explanation.”22. On the other hand, the Division Bench while shutting out theappellants on the ground of delay relied upon following judgments of thisCourt.C

·Dayaram Asanand Gursahani vs. State ofMaharashtra and others[2]

·B.S. Bajwa and another vs. State of Punjab andothers[3]

D·Malcom Lawrence Cecil D’Souza vs. Union ofIndia and others[4]

·R.S. Makashi and others vs. I.M. Menon andothers[5]

23. In the case of Dayaram Asanand Gursahani (supra), thereEwas a delay of 9 years. In the case of B.S. Bajwa (supra), there was adelay of more than a decade. In Malcom Lawrence CecilD’Souza(supra), the delay was of 15 years and in R.S. Makashi(supra)there was a delay of 8 years. In all these cases, this court has recordedthat the delay has not been explained. Shiba Shankar Mohapatra (Supra)Fis a judgment of 2010, which has laid down that, three to four yearswould be a reasonable period to challenge a seniority list and also thatany challenge beyond the aforesaid period would require satisfactoryexplanation.

24. In view of the above legal proposition, we now examine theGfacts of the present case, firstly, as to whether there was delay of morethan three to four years and secondly, if there was delay of more thanthree to four years, whether the same has been satisfactorily explained.2 (1984) 3 SCC 363 (1998) 2 SCC 5234 (1976) 1 SCC 599H5 (1982) 1 SCC 379

25. In October, 2001, when the appointment letters were issued itcarried a stipulation that the seniority would be determined later on asper rules. It is an admitted position that before 2006, the seniority list ofthe appellants was not notified. In March, 2006, when the tentative listwas published, it did not mention about the three select lists nor was thisfact mentioned when the final seniority list was published on 05.09.2006.Rather, it clearly mentioned that the seniority list had been prepared onthe basis of merit. This was in fact an incorrect statement. The senioritylist had not been prepared on the basis of merit but on the basis ofreceipt of the three separate select lists one after the other. As theAgricultural list was received first on 28.09.1999, all the selectedcandidates of agricultural stream were en bloc placed on the top,thereafter the Mechanical list was received on 06.01.2000, they wereplaced below the Agricultural stream and lastly, the Civil stream list wasreceived on 07.11.2000, they were placed at the end.

26. Rules 5 and 8 of Rules 1991 clearly mention that there shallbe one list for one selection of direct recruits. Creating three separatelists for one selection was contrary to the provisions contained in Rules5 and 8 of Rules 1991. Rules 2009 clearly mention that seniority wouldbe determined and prepared as per 1991 Rules. Rule 5 of Rules 1991,dealt with the selections made only through direct recruitment whereasRule 8 thereof dealt with the situation where seniority list is to be prepared of both the direct recruits and the promotees. However, the principlesunderlined in both these Rules are the same that there has to be one listfor one selection, as is clear from Rule 8(2)(a) and Rule 5 of Rules1991.

27. Once it is established that the seniority list was prepared incontravention to the statutory provisions laid down in Rules 1991, theseniority list could be interfered with. The Appointing Authority wouldbe bound by the statutory rules and any violation or disregard to thestatutory rules would vitiate the seniority list. The same would be arbitrary,de hors the rules and in conflict with Articles 14 and 16 of theConstitution. The only exception to the above would be where there isunreasonable delay which is unexplained.

28. In the present case, if we accept the submission of theappellants then the delay at best could be a few months or a year however,if we accept the contentions of the private respondents then the delaycould be of five years. In the first contingency, no explanation would be A

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Arequired. However, in the second contingency, if the appellants aresuccessful in satisfactorily explaining the delay, then even this hurdlecould be overcome. In the facts of the present case what we find fromthe final seniority list of 05.09.2006 is that it nowhere mentioned thatthere were three separate lists of separate streams and that they werereceived on different dates. On the contrary, there was a recital thereinBand specific averment to the effect that the list had been prepared onthe basis of merit. Thus, it cannot be said that the appellants were awareof the three separate select lists dispatched by the Commission on threedifferent dates at the time of publication of final list dated 05.09.2006.

29. It would also be worthwhile to mention here that the appellantsChad no occasion to know about the three separate lists either at the timethey were dispatched by the Commission or at any time thereafter asthe appointment letters of all selected candidates of all the three streamswere issued simultaneously under Office Order dated 08.10.2001. Itwould also be relevant to mention that the order finalizing the seniorityDlist of 05.09.2006 also nowhere mentioned that three separate lists ofthree streams were received from the Commission and placed en blocas received one after the other.

30. At the time of notifying the tentative list on 29.12.2009, it wasnot stated anywhere that there were three separate lists received onEthree different dates. As such it could not be alleged that the appellantseven at that stage did not file objections regarding preparation of commonseniority list. It was only when the final seniority list was published on05.03.2010 and in the order finalizing the list, it was mentioned by thedepartment that there were three separate lists received on three separatedates and in that sequence the combined seniority was prepared. Thus,Fit is for the first-time that appellants came to know of the error onpublication of the final seniority list on 05.03.2010.

31. The respondents have not been able to show any materialwhich could clearly indicate that the appellants had knowledge of threeseparate lists and the preparation of the seniority list on its basis. A frailGattempt has been made by the respondents referring to office orderdated 17.03.2006 Annexure-P-30 to the Appeal @ SLP(C) No.5435 of2020 which is the order notifying the tentative seniority list. Paragraph 3thereof mentions that the sequence whereunder the selection list of JuniorEngineers selected by the Commission has been received, the seniorityHhas been given in that sequence. Paragraph 3 reads as under:

“3: The sequence, where under the selection list of the JuniorEngineers selected by the Commission has been received, in thatsequence, the Seniority has been given in accordance withSeniority detailed therein.”

32. A reading of the above paragraph does not refer to any detailseither of any stream, the year of selection, the selection being made onthe basis of which advertisement or the dates on which separate listswere received. It is a general statement. This submission of therespondents stands completely diluted in view of the facts recorded inparagraph 5 and last sentence as contained in paragraph 25 of the sameoffice order dated 05.09.2006. We will analyse the same but before thatthey are reproduced hereunder:

“5. Shri Vinod Kumar Singh has requested to enter his Name inthe Seniority List and requested to grant Seniority in ratio of 50:30:20to the Agriculture/ Mechanical/ Civil Engineering. In this regard,it is clear that the above ratio is only for recruitment. FromCommission, on 6.01.2000, on 27.01.2000 and on 07.11.2000 listwas sent. Therefore, in this sequence, on the basis of merit, theSeniority has already been assessed. Name of Shri Vinay Kumarhas been entered at the required place in the Seniority List as hisName was left to be entered therein and as requested to increaseand enter his Name in this Seniority List.

25. “...The Seniority of the candidates selected from the PublicService Commission have been kept in their Serial of merit.”

33. Reading of paragraph 5, it is again mentioned that three listswere received by the Commission and in that sequence, on the basis ofmerit, the seniority has been assessed. Paragraph 5 was dealing withobjection of one Vinod Kumar Singh requesting to enter his name in theseniority list and further requesting to grant seniority in the ratio of50:30:20. The competent authority allowed the request finding that thename of Vinod Kumar Singh was left to be entered and accordingly itwas incorporated at the required place. Further, the last sentence of thisoffice order clearly mentions that the seniority of the candidates selectedfrom the Commission has been kept in their serial of merit. It does notrefer to any separate merit being considered for preparing the senioritylist of the three separate streams.

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A34. After coming of Rules 2009, fresh exercise was undertakenfor preparation of seniority list. A tentative list was notified by the OfficeOrder dated 29.12.2009. This Office Order mentions that the senioritylist has to be prepared according to 1991 Rules. While dealing with thefinalization of this tentative list, vide office order dated 05.03.2010, wefind reference to disposal of an objection by Mahesh Chand Bagani andBMahesh Kumar in which they had apparently sought clarificationregarding the requisition send to the Commission and other related aspects.In paragraph 11 of the Office Order, it is mentioned that the Commissionhad forwarded the three lists of the Agriculture, Mechanical and Civilstreams separately on 06.01.2000, 27.01.2000 and 07.11.2000 respectively.CIt further mentioned that it was in that sequence i.e. the date of receivingthat the combined seniority was assessed. Thus, again the seniority listwas finalized in the same sequence as the three lists have been receivedand in that order. It is thereafter that the representations were made thatthe seniority list of the direct recruits of 2001 was wrongly preparedcontrary to the Rules, however, when no action was taken, Rajiv NainDUpadhyay and fourteen others approached the High Court by way ofW.P. No.53123 of 2012 in October 2012 which was within a period oftwo to two and half years and till such time they had been pursuing theirrepresentation after office order dated 05.03.2010. From the above facts,it is clear that in the first contingency or in the second contingency, theEappellants cannot be found at fault. The Division Bench committed anerror in holding that the claim lodged by the appellant suffered fromdelay and laches.

35. The plea to defend the seniority list prepared contrary to thestatutory provisions on the ground of delay would be a difficult proposition.FApart from the submission of the appellants that there is no delay asthey came to know of the three separate lists only in March, 2010, evenif it is assumed that there was some delay and a fresh seniority list wasbeing prepared in 2009-2010 again contrary to the provisions of statutoryrules, such seniority list cannot be sustained or defended on the groundof delay of five years.G

36. It is also admitted by the parties that the next promotion ofJunior Engineers in the higher grade is to the post of Assistant Engineer.In the cadre of Assistant Engineer, there are no separate streams butonly one cadre of Assistant Engineers. It is the seniority list of the cadreof Junior Engineers which would be the feeder cadre for the post ofH

Assistant Engineers. The Junior Engineers of Agricultural stream of theselection of the year 2001, would have direct march over the JuniorEngineers selected in the same selection of the Mechanical and Civilstreams, even though the overall merit of some or many of Agriculturalstream Junior Engineers could be lower than some or many of theEngineers of the Mechanical and Civil streams. The appointing authorityought to have prepared a combined merit list based upon the performanceor the proficiency on the basis of the marks received in the selection testas prepared by the Commission. Otherwise, it would amount to denial ofthe right of consideration for promotion to a more meritorious candidateas against a candidate having lesser merit. Right to promotion is notconsidered to be a fundamental right but consideration for promotionhas now been evolved as a fundamental right.

37. This Court, time and again, has laid emphasis on right to beconsidered for promotion to be a fundamental right, as was held by K.Ramaswamy, J., in the case of Director, Lift Irrigation CorporationLtd. and Others vs. Pravat Kiran Mohanty and Others[6]inparagraph 4 of the report which is reproduced below:

“4… There is no fundamental right to promotion, but anemployee has only right to be considered for promotion, whenit arises, in accordance with relevant rules. From thisperspective in our view the conclusion of the High Court thatthe gradation list prepared by the corporation is in violationof the right of respondent/writ petitioner to equality enshrinedunder Article 14 read with Article 16 of the Constitution, andthe respondent/writ petitioner was unjustly denied of the sameis obviously unjustified.”

38. A Constitution Bench in case of Ajit Singh vs. State ofPunjab[7], laying emphasis on Article 14 and Article 16(1) of theConstitution of India held that if a person who satisfies the eligibility andthe criteria for promotion but still is not considered for promotion, thenthere will be clear violation of his/her’s fundamental right. JagannadhaRao,J. speaking for himself and Anand, CJI., Venkataswami,Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs21 and 22 and 27:

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7 (1999) 7 SCC 209

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“21: Articles 14 and 16(1): is right to be considered forpromotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. Theydeal with individual rights of the person. Article 14 demandsthat the “State shall not deny to any person equality beforethe law or the equal protection of the laws”. Article 16(1)issues a positive command that “there shall be equality ofopportunity for all citizens in matters relating to employmentor appointment to any office under the State”.

It has been held repeatedly by this Court that clause (1) ofArticle 16 is a facet of Article 14 and that it takes its rootsfrom Article 14. The said clause particularises the generalityin Article 14 and identifies, in a constitutional sense “equalityof opportunity in matters of employment and appointment toany office under the State. The word “employment” beingwider, there is no dispute that it takes within its fold, the aspectof promotions to posts above the stage of initial level ofrecruitment. Article 16(1) provides to every employee otherwiseeligible for promotion or who comes within the zone ofconsideration, a fundamental right to be “considered” forpromotion. Equal opportunity here means the right to be“considered” for promotion. If a person satisfies the eligibilityand zone criteria but is not considered for promotion, thenthere will be a clear infraction of his fundamental right to be“considered” for promotion, which is his personal right.

“Promotion based on equal opportunity and seniorityattached to such promotion are facets of fundamental rightunder Article 16(1)

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27. In our opinion, the above view expressed in AshokKumar Gupta and followed in Jagdish Lal and other cases, ifit is intended to lay down that the right guarantee to employeesfor being “considered” for promotion according to relevantrules of recruitment by promotion (i.e. whether on the basisof seniority or merit) is only a statutory right and not afundamental right, we cannot accept the proposition. We havealready stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be“considered” for promotion is indeed a fundamental rightguaranteed under Article 16(1) and this has never beendoubted in any other case before Ashok Kumar Gupta rightfrom 1950.”

39. This Court in Major General H.M. Singh, VSM vs. UOIand Another[8], again reiterated the legal position, i.e. right to beconsidered for promotion as a fundamental right enshrined under Article14 and Article 16 of the Constitution of India. The relevant extract fromparagraph 28 is reproduced below:

“28. The question that arises for consideration is, whetherthe non-consideration of the claim of the appellant wouldviolate the fundamental rights vested in him under Articles14 and 16 of the Constitution of India. The answer to theaforesaid query would be in the affirmative, subject to thecondition that the respondents were desirous of filling thevacancy of Lieutenant-General, when it became available on1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirousof filling up the said vacancy. In the above view of the matter,if the appellant was the senior most serving Major-Generaleligible for consideration (which he undoubtedly was), hemost definitely had the fundamental right of being consideredagainst the above vacancy, and also the fundamental rightof being promoted if he was adjudged suitable. Failing which,he would be deprived of his fundamental right of equalitybefore the law, and equal protection of the laws, extended byArticle 14 of the Constitution of India. We are of the view thatit was in order to extend the benefit of the fundamental rightenshrined under Article 14 of the Constitution of India, thathe was allowed extension in service on two occasions, firstlyby the Presidential Order dated 29-2-2008, and thereafter,by a further Presidential Order dated 30-5-2008. The aboveorders clearly depict that the aforesaid extension in servicewas granted to the appellant for a period of three months(and for a further period of one month), or till the approvalof the ACC, whichever is earlier. By the aforesaid orders, the A

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Arespondents desired to treat the appellant justly, so as toenable him to acquire the honour of promotion to the rank ofLieutenant-General (in case the recommendation made in hisfavour by the Selection Board was approved by theAppointments Committee of the Cabinet, stands affirmed). Theaction of the authorities in depriving the appellant dueBconsideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamentalright under Article 14 of the Constitution of India. Such anaction at the hands of the respondents would unquestionablyhave been arbitrary.”C

40. If the seniority list is allowed to be sustained then the engineerswho are more meritorious in the Mechanical and Civil streams than theJunior Engineers of the Agricultural stream would be deprived of theirright of being considered for promotion and in fact their right wouldaccrue only after all the Junior Engineers of the Agricultural streamDselected in the same selection are granted promotion. For these reasonsalso the seniority list in question must go.

41. The other ground taken by the High Court for non-suiting theappellants were that they had not impleaded all the affected JuniorEngineers. For the said proposition, the Division Bench of the High CourtEhas placed reliance upon judgment of this Court in the case of RanjanKumar and Others vs. State of Bihar and Others[9]. The above casewas in respect of selection and appointment on the ground that the samehad been made only on the basis of interview without holding any writtentest. The High Court had quashed such selection and appointments evenof those appointees who were not even parties to the petition. It was inFthese circumstances that this Court held that the appointments of non-parties could not be quashed. Facts of the said case are clearlydistinguishable.

42. The Division Bench of the High Court also relied upon anotherjudgment of this Court in Prabodh Verma and others vs. State ofGUttar Pradesh and others[10]. This case again related to challenge toappointments and in the said case there was no impleadment even in therepresentative capacity. In such circumstances, this Court said that thepetition was liable to be dismissed for non-joinder of necessary parties.

9 (2014) 16 SCC 187H10 (1984) 4 SCC 251

In fact, this judgment helps the appellants. Paragraph 50 thereof isreproduced below:

“50 (1): A High Court ought not to hear and dispose of a writpetition under Article 226 of the Constitution without thepersons who would be vitally affected by its judgment beingbefore it as respondents or at least some of them being beforeit as respondents in a representative capacity if their numberis too large to join them as respondents individually, and, ifthe petitioners refuse to so join them, the High Court ought todismiss the petition for non- joinder of necessary parties.”

43. The third case relied upon by the Division Bench for the aboveproposition namely State of Uttaranchal vs. Madan Mohan Joshiand others[11] was again a case where none of the affected parties wereimpleaded not even in the representative capacity. In such circumstances,this Court remanded the matter to the High Court leaving it open to theoriginal petitioners therein to move an appropriate application forimpleading some of the affected teachers in their representative capacity.

44. The fourth case relied upon by Division Bench on the aboveproposition is Indu Shekhar Singh and others vs. State of U.P. andothers[12]. In this case also, the affected parties were not impleaded andthis Court relied upon the judgment of this Court in Prabodh Verma(supra).

45. In the case of Tridip Kumar Dingal and others vs. Stateof West Bengal and others[13], C.K. Thakker, J., held that the casefalls within the ambit of non-joinder of necessary parties as none of the66 candidates against whom the complaint was made, were made parties.It further held that some of the respondents should have been arrayed inrepresentative capacity. Paragraph 41 is reproduced below:

“41: Regarding protection granted to 66 candidates, from therecord it is clear that their names were sponsored by theemployment exchange and they were selected and appointedin 1998-1999. The candidates who were unable to getthemselves. selected and who raised a grievance and made acomplaint before the Tribunal by filing applications ought to 11 (2008) 6 SCC 797

12 (2006) 8 SCC 129

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Ahave joined them (selected candidates) as respondents in theoriginal application, which was not done. In any case, someof them ought to have been arrayed as respondents in a“representative capacity”. That was also not done. TheTribunal was, therefore, wholly right in holding that in absenceof selected and appointed candidates and without affordingBopportunity of hearing to them, their selection could not beset aside.”

46. In the recent case of Mukul Kumar Tyagi and Ors. vs.The State of Uttar Pradesh and Ors.,[14] Ashok Bhushan, J., laidemphasis that when there is a long list of candidates against whom theCcase is proceeded, then it becomes unnecessary and irrelevant to impleadeach and every candidate. If some of the candidates are impleaded thenthey will be said to be representing the interest of rest of the candidatesas well. The relevant portion of paragraph 75 from the judgment isreproduced below:D“75…… We may further notice that Division Bench alsonoticed the above argument of non-impleadment of all theselected candidates in the writ petition but Division Benchhas not based its judgment on the above argument. When theinclusion in the select list of large number of candidates is onEthe basis of an arbitrary or illegal process, the aggrievedparties can complain and in such cases necessity ofimpleadment of each and every person cannot be insisted.Furthermore, when select list contained names of 2211candidates, it becomes unnecessary to implead everycandidate in view of the nature of the challenge, which wasFlevelled in the writ petition. Moreover, few selected candidateswere also impleaded in the writ petitions in representativecapacity.”

47. The present case is a case of preparation of seniority list andthat too in a situation where the appellants (original writ petitioners) didGnot even know the marks obtained by them or their proficiency in theexamination conducted by the Commission. The challenge was on theground that the Rules on the preparation of seniority list had not beenfollowed. There were 18 private respondents arrayed to the writ petition.

H14 (2020) 4 SCC 86

The original petitioners could not have known who all would be affected.They had thus broadly impleaded 18 of such Junior Engineers who couldbe adversely affected. In matters relating to service jurisprudence, timeand again it has been held that it is not essential to implead each andevery one who could be affected but if a section of such affectedemployees is impleaded then the interest of all is represented andprotected. In view of the above, it is well settled that impleadment of afew of the affected employees would be sufficient compliance of theprinciple of joinder of parties and they could defend the interest of allaffected persons in their representative capacity. Non-joining of all theparties cannot be held to be fatal.

48. The Division Bench has also dealt with an issue whichaccording to us was totally irrelevant and alien to the adjudication of thepresent appeals. In paragraph 45 of the judgment of the Division Benchthere is a reference to an issue where a party takes calculated chancesof participating in selection/appointment process and later turns aroundafter being unsuccessful would be hit by doctrine of estoppel. For thesaid proposition, the Division Bench made detailed discussions inparagraphs 46, 47, 48 and 49 of the judgment and relied upon a numberof case laws. In our considered view, this issue was not at all relevant.The said issue does not arise in the present case. The appellants/originalwrit petitioners had never challenged the selection process. The challengewas only to preparation of the seniority list. As such, this discussion bythe Division Bench is totally irrelevant.

49. The Division Bench further in paragraph 51 had in a generalizedand vague manner recorded that the authorities relied upon by the learnedsingle Judge were rendered in a different fact situation and were notapplicable. The Division Bench did not consider the judgments reliedupon by the learned Single Judge but only made this passing remarks.What we find is that the authorities relied upon by the learned SingleJudge were relevant and correctly applied.

50. Further, the Division Bench in paragraphs 51, 52, 53 proceededto deal with the delay stating it to be 11 years, the basis for calculation of11 years was that the seniority list of 2006 was challenged by way ofamendment by the appellants in the year 2017 and therefore there wasa delay of 11 years. This discussion by Division Bench also cannot besustained. The first seniority list was prepared in 2006. It was not disclosedas to how the seniority list has been prepared by treating the three separate A

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Alists independently on their merits but not as a result of combined meritof the three lists. It was only in 2010 that the appellants came to know ofthe fallacy and soon thereafter they challenged the seniority list of 2010.Even if, they did not challenge the seniority list of 2006, 2010 senioritylist could always be revisited, reviewed and prepared afresh, if the samewas quashed. The appellants could not have been at any loss even ifBthey had not challenged the 2006 seniority list.

51. The reasoning given in paragraphs 54, 55, 56 regarding issueof single selection is also not sustainable in view of Rules 1991 as alsoRules 2009.

C52. Lastly, paragraph 57 of the judgment of the Division Benchwhich deals with Rule 5 and 8 of 1991 Rules, we may only reiterate that,whether it was Rule 5 which was applicable or Rule 8 which wasapplicable, the seniority inter se of direct recruits to one selection has tobe one combined list based on the performance and the marks awardedin the examination prepared either by the Commission or the Committee,Das the case may be. True, the learned Single Judge, in the operativeportion mentioned that a fresh seniority list be prepared in accordancewith Rule 5 and apparently did not consider the effect of Rule 8, wouldnot vitiate the judgment inasmuch as the basis for preparation of theseniority list of direct recruits was the same in both the Rules. It may beEnoted that there is no lis inter se between direct recruits and promotees.

53. For all the reasons recorded above, we find that the DivisionBench fell in error in allowing the appeal and dismissing the writ petition.The learned Single Judge was right in his view in setting aside the finalseniority list and directing the appointing authority for preparation ofFfresh seniority list in accordance with Rules 1991, be it Rule 5 or Rule 8thereof.

54. The appeals are, accordingly, allowed. The impugned judgmentof the Division Bench of the High Court dated 04.12.2019 is set asideand that of the Single Judge dated 14.05.2019 is maintained.

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55. There shall be no order as to costs.

56. Pending application(s), if any, is/are also disposed ofaccordingly.

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Nidhi Jain