Dharmendra Prasad vs Sunil Kumar

DHARMENDRA PRASAD & ORS. .....APPELLANT(S)

VERSUS

SUNIL KUMAR & ORS. .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 9248 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 24101 OF 2018)

JUDGMENT

HEMANT GUPTA, J.

1. The order dated 11th July, 2018 passed by the Division Bench of the

High Court of Uttarakhand at Nainital is the subject matter of

challenge in the present appeals.

2. The High Court vide impugned order has directed the Uttarakhand

Pey Jal Nigam1, a creation of the Statute i.e. the Uttar Pradesh

Water Works and Sewer Arrangement Act, 1975, to determine the

seniority of the Junior Engineers strictly as per Regulation 23 of the

1 for short, ‘Nigam’

1 Uttar Pradesh Jal Nigam Subordinate Engineering Service

Regulations, 19782. Regulation 23 contemplates that the seniority

of a person appointed in any branch of service in any category of

post shall be made as per the date of substantive appointment.

3. An advertisement was issued by the Nigam on 29 th November,

2004 for filling up of vacancies of 241 posts of Junior Engineer

(Civil). This included 104 posts under General category, 52 posts

under Other Backward Classes3, 70 posts under Scheduled Castes4

and 15 posts under Scheduled Tribes 5. Another 38 posts were

advertised for Junior Engineer (Mechanical). The advertisement

contemplated that the reserved posts shall be filled up as per the

reservation policy of the Government of Uttaranchal. Further the

horizontal reservation in each category for females, ex-servicemen,

handicapped people and dependents of freedom fighters will be

made as per the order of the Government of Uttaranchal dated 18 th

July, 2001.

4. The State Government permitted the Nigam to make appointments

to the posts of Junior Engineer and Assistant Engineer on 3 rd May,

2005 (Annexure R3/4) and that the appointment of 34 posts of

Assistant Engineer and 107 posts of Junior Engineer was to be

made as per the prescribed roster after making calculations based

upon the Government order dated 31st August, 2001. Such sanction

2 for short, ‘Regulations’ 3 for short, ‘OBC’ 4 for short, ‘SC’ 5 for short, ‘ST’

2 was in respect of 88 posts of Junior Engineer (Civil).

5. Pursuant to the above said advertisement, the selection process

was completed and a merit list on the basis of marks obtained in

the written test and interview was published. The result was

declared separately for the candidates belonging to different

categories i.e. General category, OBC, SC and ST. Thereafter, five

different sets of appointment orders were issued from May, 2005

till December, 2005, the first being issued on 13 th May, 2005. The

appointment orders were given to the candidates in each category

proportionate to the quota reserved for the reserved category

candidates. It is pertinent to note that one of the conditions in the

letter of appointment was that the seniority will be determined

later.

6. Thereafter, a tentative seniority list was published on 14th

September, 2010 based upon the merit list prepared on the basis

of the marks obtained in the written test and interview. Objections

were filed to such tentative seniority list. The final seniority list was

published on 28th November, 2014 on the basis of the merit list

prepared while declaring the result.

7. The said seniority list became subject matter of challenge before

the Uttarakhand Public Services Tribunal 6. The learned Tribunal

dismissed the petition vide order dated 10 th October, 2017.

Thereafter, a review petition was filed which was also dismissed on

6 for short, ‘Tribunal’

3 23rd November, 2017. The aforementioned orders were made

subject matter of challenge before the High Court. The High Court

held that since there is no dispute about the dates of appointment

of the candidates, the seniority has to be prepared in terms of

Regulation 23 based upon dates of appointment rather than merit,

as the rule to determine seniority is from the date of appointment.

The High Court has allowed the writ petition with the following

order:

“35. The up-shot of the above discussion is that the writ petitioner is entitled to succeed. Accordingly, the writ petition is allowed; the order passed by the Tribunal in the Claim Petition, as also the order passed in the Review Petition, will stand set-aside; the Claim Petition of the petitioner will stand allowed; the final seniority list, which impugned before the Tribunal, will stand set- aside; and the order dated 03.11.2014 will also stand set aside. The fourth respondent will prepare a fresh seniority list in accordance with law and the observations made in this judgment. We would add that, as it is pointed out that petitioner was appointed along with several others by a common order, in respect of the petitioner also, the same principle will apply, namely, that, in respect of those person, they will be governed by the approved list.”

8. Resultantly, the candidates who rank higher in merit have

approached this Court.

9. The admitted facts are that the appellants before this Court are

higher in merit than the writ petitioners before the High Court but

the writ petitioners were appointed earlier in point of time than the

appellants who came to be appointed subsequently by the unique

method of appointment resorted to by the Nigam. The Regulations

4 have been framed by the Nigam under the Statute establishing the

same. Some of the relevant Regulations read as under:

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

xx xx xx

Regulation 16 (1) When appointment has to be done on availability of vacancies, Appointment Authority shall review all the applications received from the candidates and will inform the date of written competitive examination to such candidate/ candidates who are found suitable for recruitment under this Regulation. No candidates may be included in the written competitive examination unless he has got any authority or Admit Card from the Nigam.

(2) Appointment authority shall prepare a list of candidates in order of merit, as is evident from the written examination, and invite for interview those candidates who attains qualification as per standard fixed by the Nigam. Marks obtained by each candidate in the interview shall be added to the marks obtained in the written examination. Final position of a candidate shall be determined by the total marks obtained him, and thereafter list will be prepared. If two or more candidates obtain equal marks, then the candidate obtaining more marks in written examination will be placed higher in the merit list. If two or more candidates obtain equal marks in both written examination and interview, then a candidate having more marks in diploma examination will be placed higher in the merit list.

xx xx xx

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

(2) If the Appointing Authority is not in agreement with the recommendation of Selection Committee, then this

5 matter shall be presented before the Nigam. The decision of the Nigam shall be final in this regard and the Appointment Authority will take action as directed by the Nigam.

xx xx xx

Regulation 20. On vacancies being created, Appointing Authority shall make appointment by taking names of candidates in the order in which they stand in the list prepared under Regulation 16(2) and 17 or 18.

xx xx xx

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

10. It is also an admitted fact that the result was declared by the

Nigam of each category i.e. General, OBC, SC, ST as per their own

merit.

11. Regulation 6 contemplates that the reservation for the candidates

belonging to SC, ST and Backward Classes and the candidates of

other categories shall be in accordance with the orders of the

Government in force at the time of the recruitment. The State

Government while permitting the Nigam to make appointments to

the posts of Junior Engineer on 3rd May, 2005 (Annexure R3/4),

provided that the appointment of Junior Engineers will be made as

per the prescribed roster after making calculations based upon the

Government order dated 31st August, 2001. The relevant extract

from the Government Order is as hereunder:

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

12. The Circular dated 31st August, 2001 (Annexure R3/3) has a 100-

point roster. As per the said Circular, the first post is to be filled up

by a candidate belonging to the SC category and the last post, from

amongst the 100-point roster, is to be made under the General

category. The relevant clause from the said Circular reads as

under:

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

(2) In order to ensure the aforesaid reservation, the following roster has been prepared…

(3) It is requested that the aforesaid Roster shall continuously be implemented in matters of direct requirements.”

13. The stand of the State is that the Regulations are pari materia with

the Uttarakhand Government Servant Seniority Service Rules, 2002

which prescribes that the seniority of persons appointed on the

basis of the result of any one selection, shall be the same as it is

shown in the merit list prepared by the Committee. Reliance is

placed upon clause (9) of the appointment letter dated 13 th May,

2005 which is to the effect that the seniority of the candidates to

the post of Junior Engineer (Civil/Mechanical) will be decided later.

7 14. On the other hand, the Nigam in its counter affidavit stated that as

on 29th November, 2004, 241 vacancies of Junior Engineer (Civil)

were advertised. The written examination was conducted on 26 th

December, 2004 and the candidates were called for the interview.

The State Government approved 88 posts to be filled up as per the

roster mentioned in the Circular dated 31st August, 2001 and the

appointment orders were issued.

15. Mr. Raju Ramachandran, learned senior counsel for the appellants

argued that the High Court has erred in law in upsetting the

seniority list on the basis of Regulation 23 as the stand-alone

provision. It is argued that Regulation 23 has to be read along with

other Regulations particularly Regulations 16, 17 and 20. The

appointing authority is bound to make appointments by taking the

name of candidates in the order in which they stand in the list

prepared under Regulations 16(2) and 17 or 18. All the Regulations

have to be read harmoniously and one Regulation cannot be read

in isolation so as to defeat the merit prepared by the Selection

Committee only on account of the fortuitous circumstance of giving

appointment to some of the candidates lower in the merit list at an

early point of time. Since appointments could be made only in

terms of the merit list, therefore, Regulation 23 has to be read

along with Regulation 20. The mere fact that some juniors

have been appointed earlier in point of time will not make them

steal march over the appellants who are higher in merit.

8

16. On the other hand, Mr. Nidhesh Gupta, learned senior counsel for

the writ petitioners submits that the writ petitioners were

appointed admittedly at an early point of time than the appellants.

The appellants have not raised any grievance at the time of the

appointment of the candidates lower in merit on the alleged

violation of Regulations 16, 17 or 20. Therefore, the seniority has

been rightly fixed from the date of appointment based upon

Regulation 23 of the Regulations. It is also argued that the

Government order dated 31st August, 2001 is an order to determine

seniority as per the roster fixed in terms of Regulation 6. The letter

dated 3rd May, 2005 by the State Government while granting

sanction to fill up 88 posts of Junior Engineer (Civil) specifically

mentioned that reservation to the posts of Junior Engineer (Civil)

shall be in accordance with roster in the Government order dated

31st August, 2001. Therefore, in any case, the seniority has to be

fixed as per the roster prescribed in the letter dated 31 st August,

2001.

17. We find that the method of giving appointment to the senior most

person of each category is only a fortuitus circumstance as such

appointments were made dehors the merit. Regulation 20

mandates the appointing authority to make the appointments from

amongst the candidates in order in which they stand in the list

prepared under Regulations 16(2), 17 or 18. Any appointment

made by the Nigam in contravention of the statutory Regulations

9 cannot defeat the rights of the appellants only because they have

not challenged the appointment of their juniors at an earlier point

of time. Regulation 23 provides that seniority of persons appointed

in any branch of service shall be made as per substantive

appointment. The appointment in Regulation 23 has to be read in

terms of Regulation 20 mandating the manner of appointment.

Therefore, irrespective of the date of appointment, the seniority

has to be fixed as per the merit of the candidates determined by

the Selection Committee.

18. However, we find that Regulation 6 itself contemplated that

reservation of candidates belonging to SC, ST, Backward Classes

and the candidates of other categories shall be in accordance with

the orders of the Government in force at the time of recruitment.

In terms of such Regulations, the Government order dated 31 st

August, 2001 becomes applicable to determine the extent of

reservation which includes the method of determining seniority as

well. Apart from the statutory Regulation 6, even the approval of

the State Government to fill up 88 posts specifically mentions that

the reservation shall be made as per the 100 points roster as

prescribed in the Circular dated 31 st August, 2001. Admittedly, the

seniority has not been framed keeping in view the roster circulated

on 31st August, 2001.

19. We do not find any merit in the argument raised by the State that

the seniority has to be fixed as per Rule 5 of the Uttarakhand

10 Government Servant Seniority Service Rules, 2002. Such Rules

were not adopted to be applicable to the Nigam. The Rules were

approved by the Board of the Nigam on 24 th September, 2007

proposing that the provision shall be made in the proposed service

regulations but the Rules were made applicable in the year 2011

only. Such is the finding recorded by the High Court which is not

disputed by the appellants or by the writ petitioners. Such Rules

have been framed under the proviso to Article 309 of the

Constitution and they are not applicable to a creation under a

Statute. These Rules are applicable to government servants in

respect of whose recruitment and condition of service Rules may

be or have been made by the Government under the proviso to

Article 309 of the Constitution. Since the employees of the Nigam

are not government servants nor are their service conditions

governed by Rules framed under the proviso to Article 309 of the

Constitution, therefore, such Rules unless adopted by the Nigam

cannot be extended to the employees of the Nigam.

20. Therefore, we find that the order of the High Court and that of the

Tribunal are not sustainable in law as the seniority list has not been

prepared in accordance with the roster circulated on 31 st August,

2001 which is required to be mandatorily followed in terms of

Regulation 6 as well with the approval of the State Government

dated 3rd May, 2005 to fill up 88 posts.

21. Consequently, the seniority list finalised on 28 th November, 2014 as

11 also the order of the High Court dated 11 th July, 2018 are set aside.

Respondent No. 5 is directed to recast seniority of the candidates in

the order of merit by assigning their seniority as per the roster

points given in Circular dated 31st August, 2001. With the said

directions, the appeals stand disposed of.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

DECEMBER 06, 2019.

12