D.R. Yadav & Anr vs R.K. Singh & Anr

Dispute of inter se seniority between the appellants and the respondent

No. 1 is in question in this appeal which arises out of a judgment and order

dated 23.5.2002 passed by a Division Bench of the High Court of Judicature

at Allahabad, Lucknow Bench in Writ Petition No. 1780(S/B) of 2000 and

Writ Petition No. 195(S/B) of 2001.

FACTUAL MATRIX:

The Legislature of the State of U.P. enacted U.P. Urban Planning &

Development Act, 1973 (hereinafter referred as '1973 Act'). The said Act

was enacted to provide for the development of certain areas of Uttar Pradesh

according to the plan and for matters connected therewith and ancillary

thereto.

By reason of Section 4 of the said Act an Authority to be called the

Development Authority for any development area was constituted. Section

5 deals with the staff of the said authority. Sub-section (2) of Section 5 of

1973 Act contemplates that subject to such control and restrictions as may

be determined by general or special orders of the State Government, the

authority may appoint such number of other officers and employees as may

be necessary for the efficient performance of its functioning. The reason for

the said enactment inter alia is stated to be:

"In the developing areas of the State of Uttar

Pradesh the problems of town planning and Urban

development need to be tackled resolutely. The

existing local bodies and other authorities in spite

of their best efforts have not been able to cope with

these problems to the desired extent. In order to

bring about improvement in this situation, the State

Government considered it advisable that in such

developing areas, Development Authorities

patterned on the Delhi Development Authority be

established. As the State Government was of the

view that the Urban development and planning

work in the State had already been delayed it was

felt necessary to provide for early establishment of

such authorities."

By reason of the provisions of the said Act, thus, other statutes

governing the field relating to town planning and urban development

remained suspended in terms of Sub-section (1) of Section 59 of the Act.

Sub-Section (3) of Section 59 reads as under:

"On and from the constitution of the Development

Authority in relation to a development area which

includes the whole of a city as defined in the Uttar

Pradesh Municipal Corporations Act, 1959, all

posts borne on the establishment of the Municipal

Corporation of that city exclusively in connection

with its activities under Chapter XIV of the said

Adhiniyam or under the Uttar Pradesh (Regulation

of Building Operations) Act, 1958, immediately

before the date of the constitution of the

Development Authority, not being a post governed

by the Uttar Pradesh Palika (Centralized) Services

Rules, 1956 (hereinafter in this section referred to

as the Centralized Services), shall, on and from

such date, stand transferred to the Development

Authority with such designations as the Authority

may determine and officers and other employees

who are not members of any Centralised Services,

serving under the Municipal Corporation of that

city not exceeding the number of posts so

transferred shall be selected in accordance with

such directions as may be issued by the State

Government for being appointed on the said posts

and on such selection shall stand transferred to and

become officers and other employees of the

Development Authority and shall as such hold

office by the same tenure, at the same

remuneration and on the same terms and

conditions of service as they would have held the

same if the Authority had not been constituted, and

shall continue to do so unless and until such

tenure, remuneration and terms and conditions are

duly altered by the Authority.

Provided that any service rendered under the

Municipal Corporation by any such officer or other

employee before the constitution of the Authority

shall be deemed to be service rendered under the

Authority.

Provided further that the Authority may employ

any such officer or other employee in the discharge

of such functions under this Act as it may think

proper, and every such officer or other employee

shall discharge those functions accordingly."

In terms of Section 4 of the said Act, Lucknow Development

Authority was constituted on 13.09.1974 whereupon all posts borne on the

development wing of the other local bodies like Nagar Mahapalika or

Municipal Corporation etc. stood transferred thereto.

Pursuant to or in furtherance of applications having been invited to fill

up the posts of Assistant Engineer (C), the appellants applied therefor and

were subsequently appointed. Appellant No. 1 joined the post of Assistant

Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on

12.07.1979. Respondent No. 1, however, was admittedly appointed on or

about 12.10.1976.

The State Government thereafter created Development Authorities

Centralised Service with effect from 22.10.1984 by inserting Section 5-A

therein. In terms of Sub-Section (2) of Section 5-A, a person serving on the

posts included in such service immediately before such creation shall finally

or provisionally be absorbed in the Development Authorities Centralised

Service if he was confirmed in his post or if he was holding temporary or

officiating appointment, as the case may be. The appellants were absorbed

in the posts of Assistant Engineer.

It is not in dispute that Respondent No. 1 was provisionally promoted

to the Post of Assistant Engineer on purely reference basis by an Office

Memorandum dated 3rd May, 1986. Appellants were said to have been

promoted to the post of Assistant Executive Engineer on purely ad hoc basis

in terms of Office Memorandums dated 3rd May, 1986 and 31st January,

1987. The appellants as also Respondent No. 1 were finally absorbed in the

Centralised Service on the post of Assistant Engineers by an Office

Memorandum issued on 14 May, 1987.

The State Government issued a seniority list in terms of Office

Memorandum dated 12th April, 1996. The said seniority list was the subject

matter of Writ Petition filed by Respondent No. 1. In the meantime,

Appellant No. 1 was promoted to the Post of Chief Engineer resulting in

filing of second Writ Petition before the Lucknow Bench of Allahabad High

Court by the Respondent No. 1. However, during pendency of the said Writ

Petition, the order of promotion of Appellant No. 1 was rescinded on

29.11.2001. Several applications thereafter were filed before the State

Public Services Tribunal questioning the said seniority list and the

promotion to the Posts of Executive Engineer and Chief Engineer. The

Tribunal allowed the said applications whereagainst the State of Uttar

Pradesh preferred several writ applications. The writ petitions together with

the writ applications pending before it were taken up for hearing by the High

Court and by reason of the impugned judgment dated 23.05.2002 it was held

as follows:

"Having examined the materials on record and the

submissions made by the parties and in the light of

various decisions of the Supreme Court referred

hereinabove, we find no infirmity in the impugned

judgment of the Tribunal and the Tribunal has not

erred in directing the State Government to

determine the seniority of the claimants and to

grant promotions with effect from the date their

juniors have been so promoted.

Therefore, while affirming the judgments of the

Tribunal, we direct that in the light of the decision

of the Apex Court in the case of Mohan Karan's1

case, the seniority in the cadre of Junior Engineers,

Assistant Engineers and Chief Engineers shall be

counted from the date of initial appointment and

the members of the Centralised Service who had

rendered service in other departments on similar/

equivalent posts, shall be decided in the light of the

decisions of the Supreme Court and the

observations made hereinabove. The State

Government shall make endeavour to comply

directions of the Tribunal with respect to fixing of

seniority and promotion of the claimant –

respondents within three months."

It is not in dispute that two different rules relating to determination of

seniority were operating in the field; one being a general rule known as 'The

Uttar Pradesh Government Servants Seniority Rules, 1991'; the other being

the special rules known as 'U.P. Development Authorities Centralised

Service Rules, 1985' framed by the State of Uttar Pradesh in exercise of its

powers conferred under Section 55 of the Uttar Pradesh Urban Planning and

Development Act, 1973 read with Section 5-A thereof.

RELEVANT STATUTORY PROVISIONS:

The relevant rules of U.P. Development Authorities Centralised

Service Rules, 1985 which are material for the purpose of this case read as

under:

"PART II

CADRE AND STRENGTH

3. (1) There shall be the following categories of the

posts in the cadre of the service and they shall consist

of the posts mentioned against them –

Service

Posts included in the service

Scales of Pay

in Rs

1 2 3

I to III

Omitted

IV. Town

Planning &

Architectural

1. Mukhya Nagar Niyojak

1780-2300

2. Nagar Niyojak

1250-2050

3. Sahayak Nagar Niyojak

850-1720

4. Vastuvid/Statistical

Assistant

570-1100

5 to 10 Omitted

V to VIII

Omitted

Note. - The undernoted posts, as specified above,

shall include the post or posts mentioned against

them as also the posts carrying identical scales of

pay in the same or equivalent cadre.

Post

Post(s) included

(1) to (8)

Omitted

(9) Mukhya Nagar Niyojak

Vastuvid Niyojak

(10) Sahayak Nagar Niyojak

Vastuvid (Rs. 850-1720)/Sahayak

Vastuvid/Landscape Vastuvid/

Vastuvid Niyojak/Research

Officer.

(11) to (22)

Omitted

Note. - (2) The post or posts specified above but

not existing in any Development Authority on the

date of enforcement of these rules, shall not mean

to have been created or come into existence by

virtue of the provisions of this rule.

7. (1) Notwithstanding anything in Rule 28 the

seniority of such officers and other employees who

are finally absorbed in the service under sub-

section (2) of Section 5-A of the Act shall be

determined on the criterion of continuous length of

service including the services rendered in a

Development Authority, Nagar Mahapalika,

Nagarpalika or Improvement Trust on similar

posts.

21. Procedure for recruitment by promotion:

Recruitment by promotion shall be made on the

basis of seniority subject to the rejection unfit (in

accordance with the Uttar Pradesh Promotion by

selection in Consultation with Public Service

Commission (Procedure) Rules, 1970 as amended

from time to time.

28. (1) Except as hereinafter provided, the

seniority of persons in any category of post, shall

be determined from the date of order of

appointment and if two or more persons are

appointed together, by the order in which their

names are arranged in the appointment order :

Provided that if more than one order of

appointment are issued in respect of any one

selection the seniority shall be as mentioned in the

combined order of appointment issued under sub-

rule (3) of Rule 25.

* * *

(3) The seniority inter se of persons appointed by

promotion shall be the same as it was in the cadre

from which they were promoted.

The relevant provisions of Uttar Pradesh Government Servants

Seniority Rules, 1991 read as under:

"2. These Rules shall apply to all government

servants in respect of whose recruitment and

conditions of service, rules may be or have been

made by the Governor under the proviso to Article

309 of the Constitution.

3. These Rules shall have effect notwithstanding

anything to the contrary contained in any other

service rules made heretobefore.

4. In these Rules, unless there is anything

repugnant in the subject or context, the expression

-

(f) 'service' means the service in which the

seniority of the member of the service has to be

determined;

(g) 'service rules' means the Rules made under the

proviso to Article 309 of the Constitution, and

where there are no such rules, the executive

instructions issued by the Government regulating

the recruitment and conditions of service of

persons appointed to the relevant service;

6. Where according to the service rules,

appointments are to be made only by promotion

from a single feeding cadre, the seniority inter se

of persons so appointed shall be the same as it was

in the feeding cadre."

PRIMAL QUESTION:

The dispute between the parties before the High Court as stated in the

impugned judgment is as under:

"The crux of the matter in these petitions is

fixation of seniority and consequential promotions.

As mentioned earlier with effect from 12.6.1973

the Uttar Pradesh Planning and Development

Ordinance, 1973 was promulgated for the purpose

of creating various development authorities in

Uttar Pradesh. The said ordinance later on became

the Act (U.P. Act No. 11 of 1973) which came into

existence on 7.11.1973. In pursuance of the said

ordinance and Act, various development

authorities were created through notification issued

in exercise of the powers under Section 4 of the

said Act of 1973. In the development authorities,

initially besides other staff, Junior Engineers and

Assistant Engineers were appointed by the

concerned authorities of respective development

authorities. Thereafter, some Junior Engineers

were promoted to the post of Assistant Engineer in

50% promotion quota and some Assistant

Engineers were promoted to the post of Executive

Engineer."

SUBMISSIONS:

Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of

the appellants raised a short question in this appeal. The submission of

learned counsel is that the High Court went wrong in applying the 1991 rules

relying on or on the basis of decision of this Court in Mohan Karan (supra)

without effectively considering the provisions of Article 309 of Constitution

of India. It clearly stipulates that in terms of proviso appended thereto the

Governor can frame a rule so long as the State or the concerned statutory

authorities do not make any provisions laying down the conditions of service

by or under a statutory enactment. In other words, once a Legislation has

come into being and rules have been framed thereunder governing the field,

the general rules made by the Governor in terms of proviso appended to

Article 309 of the Constitution of India must give way to the special rules

framed under the statute. Thus, when there exist Special Rules, General

Rules cannot be applied. Strong reliance in this behalf has been placed on

Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others

[(2002) 6 SCC 127].

The learned counsel would further submit that the decision of this

Court in Mohan Karan (supra) does not lay down a good law.

Mr. Dwivedi would urge that as the appellants were absorbed in the

centralised services, their seniority shall be determined in terms of Rule 7 of

the 1985 Rules. He would in this connection lay emphasis on the words 'on

similar posts' occurring in Rule 7.

Mr. Harish Salve, the learned Senior Counsel, on the other hand,

would submit that assuming that the special rule shall apply in the instant

case; the same would be of not much relevance as the seniority has to be

determined in terms of Sub-Rule (1) of Rule 7 of 1985 Rules on the criteria

of continuous length of service including the service rendered in a

Development Authority, Nagar Mahapalika, Nagarpalika or Improvement

Trust on similar posts, and as the manner for determination of continuous

length of service is not provided in the said sub-rule, the general rule must

be taken recourse to for the said purpose. In this connection our attention

has been drawn to the cadre of Service contained in Rule 3 of the 1985

Rules.

FINDINGS

It appears that having regard to the absorption of the employees from

different authorities in the Centralised Service on 22.10.1984, according to

the High Court, some sort of chaos was created amongst the members of the

Service. The High Court relying on or on the basis of a Division Bench

decision of this Court in Mohan Karan's case (supra) held that the provisions

of the Rules 1991 shall apply for the purpose of determination of inter se

seniority. Therein it was held:

14. We have already extracted Rule 6 of these

Rules, which relates to seniority where the

appointments are by promotion only from a single

feeding cadre. But for Rule 3 above mentioned, we

would have accepted the contentions of learned

counsel for the appellant and upset the judgment of

the High Court. Rule 3, in our view, overrides all

other rules made earlier in other services in the

State, whereas Rule 7 of the Centralised Services

Rules has the overriding effect against Rule 28 of

those Rules only. Further, the title of 1991 Rules

clearly suggests that the seniority among the

government servants in U.P. should be fixed in the

light of these Rules. Therefore, we are inclined to

hold that Rule 6 of the U.P. Government Servants'

Seniority Rules, 1991 cannot be ignored as it has

overriding effect on Rule 7 of the Centralised

Services Rules.

The 1991 Rules were framed by the Governor of Uttar Pradesh in

exercise of his power conferred under the proviso appended to Article 309 of

the Constitution of India. The Proviso appended to Article 309 of the

Constitution reads thus:

"Provided that it shall be competent for the

President or such person as he may direct in the

case of services and posts in connection with the

affairs of the Union, and for the Governor of a

State or such person as he may direct in the case of

services and posts in connection with the affairs of

the State, to make rules regulating the recruitment,

and the conditions of service of persons appointed,

to such services and posts until provision in that

behalf is made by or under an Act of the

appropriate Legislature under this article, and any

rules so made shall have effect subject to the

provisions of any such Act."

On a plain reading of the said provision, there cannot be any doubt

whatsoever that rules framed thereunder would apply so long as a statute or

statutory rules or any other subordinate legislation governing the conditions

of service are not enacted or made or not otherwise operating in the field. In

other words, rules made under proviso to Article 309 of the Constitution are

for a transitory period and the same would give way to the special rules once

framed. However, if a statute or rules made thereunder was/were already

operating in the field, the general rules made under proviso to Article 309

would not apply to the Services created thereunder.

The submission of Mr. Dwivedi to the aforementioned extent appears

to be correct.

In the event two conflicting rules are operating in the same field, the

doctrine of generalia specialiabus non derogant shall apply. It was so held in

Chandra Prakash Tiwari (supra).

But the question which arises for consideration in these appeals does

not solely depend on the applicability of the general rules vis-à-vis the

special rules.

It is true that the appellants were sought to be promoted to the Posts of

Assistant Executive Engineer. The said posts, however, were not available.

They were, therefore, absorbed ultimately in the posts of Assistant Engineer.

The State of U.P. in its counter affidavit stated:

"It is stated that petitioner No. 1 was promoted on

temporary basis by Lucknow Development

Authority till further orders on the post of

Assistant Executive Engineer…It is relevant to

mention that on 22.10.1984, the petitioners were

working on the post of Assistant Executive

Engineer. Upon creation of the U.P. Development

Authorities Centralised Service, since there was no

post of Assistant Executive Engineer in the said

service, hence the petitioners were absorbed on the

post of Assistant Engineer in the service."

What was, therefore, relevant for the purpose of determination of

seniority even in terms of Rule 7 of the 1985 Rules, was the continuous

service rendered by the concerned employees 'on similar posts', which

would mean posts which were available having been legally created or borne

on the cadre.

The ad hoc or temporary promotion granted to the appellants on

03.05.1986 and 13.01.1987 respectively on non-existent posts of Assistant

Executive Engineer would not, therefore, confer any right of seniority on

them. Thus, for all intent and purport for the purpose of determination of

seniority, the appellants were not promoted at all. Once they have been

absorbed with Respondent No. 1 and other employees similarly situated,

their inter se seniority would be governed by the statutory rules operating in

the field. The case of the appellants vis-à-vis Respondent No. 2 although

may be governed by the special rules, in terms of Rule 7, the same has to be

determined on the criteria of continuous length of service including the

service rendered in a Development Authority, Nagar Mahapalika,

Nagarpalika or Improvement Trust on similar posts. The appellants, it will

bear repetition to state, although were promoted at one point of time on

purely ad hoc basis to the posts of Assistant Executive Engineer as the said

posts even in their parent authority were not of similar type, the same would

not be relevant for the purpose of determining the inter se seniority. If the

rule of continuous service in same and similar posts is to be resorted to, the

date of initial appointment would be a relevant criteria therefor. [See M.

Ramachandran Vs. Govind Ballabh and others [(1999) 8 SCC 592], K.

Anjaiah and Others Vs. K. Chandraiha and others [(1998) 3 SCC 218],

Vinod Kumar Sharma Vs State of U.P. and Another [(2001) 4 SCC 675],

S.N. Dhingra and others Vs. Union of India and others [(2001) 3 SCC 125]. In a recent decision in Kaushal Kishore Singh Vs. Dy. Director of

Education and others [(2002 AIR SCW 19)], this Court held:

"The claim of seniority of the employee is always

determined in any particular Grade or Cadre and it

is not the law that seniority in one Grade or Cadre

would be dependent on the seniority in other Grade

or Cadre."

As the post of Assistant Executive Engineer was not a cadre Post, the

appellants cannot be said to have been working on a higher post for the

purpose of Rule 7 of the 1985 Rules.

Yet again in Md. Israils and others Vs. State of West Bengal and

others (2002 AIR SCW 68), it was held:

"The corollary of the above Rule is, where the

initial appointment is only adhoc and not

according to the rules and made as a stop-gap

arrangement, the officiation in such post cannot be

taken into account for considering the seniority."

CONCLUSION:

In view of our findings aforementioned, we have no other alternative

but to uphold the order of the High Court, albeit for different reasons.

Accordingly, the Appeals are dismissed. The parties shall pay and bear

their own costs in these appeals.

In view of aforementioned, it is not necessary to pass any separate

order on the Interlocutory Applications.