State Of Uttarnchal & Anr vs Madan Joshi & Anr

State of Uttaranchal & Anr. ... Appellant

Versus

Madan Mohan Joshi & Ors. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. Inter se seniority amongst the teachers of Kumaon University is in

question in this appeal which arises out of a judgment and order dated

21.3.2006 passed by a Division Bench of the High Court of Uttaranchal

at Nainital in Writ Petition No.71 of 2004).

2

Before adverting to the aforementioned question, we may notice

the factual matrix involved in the matter.

3. First Respondent was appointed on an ad hoc basis as a Lecturer in

Government P.G. College, Almora by the State of Utter Pradesh through

Vice-Chancellor, Kumaon University on or about 22.9.1975. The said

College was declared as the Campus College of the University. All

Lecturers including the first respondent were continued and treated on

deputation with the University; the cut off date wherefor was fixed

16.8.1977. The State of Utter Pradesh framed U.P. Regularization Rules,

1979, the relevant provisions whereof reads as under :

4.(i) Any person who

(i) was directly appointed on ad hoc basis before 1.1.1977 and is continuing in service.

(ii) Possessed requisite qualification prescribed for regular appointment at the time of such ad hoc appointment, and

(iii) Has completed or, as the case may be, after he has completed three years continuous service.

Shall be considered for regular appointment in permanent or temporary vacancy as may be available on regular appointment is made in such vacancy in accordance with the relevant service rules or orders."

3

4. Pursuant to and in furtherance of the said Rules, services of 355 ad

hoc Lecturers were regularized. However, the cases of nine Lecturers

including the first respondent, who had been working on deputation,

were left out. It is contended that one Savita (Mohan) Dhondiyal who

had also been appointed as an ad hoc Lecturer on 17.4.1975 and, thus,

being junior to the first respondent was regularized.

5. Representations were made by the respondents and others. The

Directorate of Higher Education, Uttar Pradesh asked the Vice-

Chancellor of the University to forward the list of the said Lecturers

pursuant whereto, services of nine Lecturers including the respondent

were regularized by an order dated 11.7.1980, stating :

"The appointing authority in exercise of powers conferred by Rule 5 of the Regularisation of Ad hoc Employees on the posts within the jurisdiction of the U.P. Public Service Commission Rules, 1979 issued by the Department of Personnel vide its Notification No.19/8/75[1] dated 14th May, 1979, and in view of the recommendations made by the Selection Committee constituted for regularization of the ad hoc lecturers working in various Government Colleges under the Directorate of Education prior to 1st January, 1977 in the pay scale of 700-1600, hereby regularizes appointments of the lecturers with effect from the date of issuance of this order and they are being given temporarily regular 4

appointments on the posts of Lecturers w.e.f. 11th July, 1980.

However, the seniority of these lecturers shall be according to their Serial number given in the enclosed Annexure and they will be junior to those lecturers who have been regularized and appointed prior to the date of regular appointment of these lecturers."

6. Aggrieved by the said order, they made a representation.

7. By an order dated 9.6.1988, the services of the respondent were

appointed with effect from 1.7.1983, it was stated :

"Following officers of the Government Colleges working as Lecturers in Botany Science in the pay scale of 2200-4000 are hereby appointed on probation period of two years on the same dates with effect from the dates mentioned against their names and their earlier services would be counted towards this probation period and they are hereby regularized on the said post and in the same pay scale. However, their seniority would be determined later on.

Sr. Name and designation Date of Details of No. of Officer who has regulari- vacancies Been regularized. sed

1-20 XX XX XX

21. Shri Madan Mohan 1.7.1983 Regularised Joshi, Lecturer in on the post Botany Science w.e.f 1.7.1983 5

Vide G.O. No.2058/15 84-11-12-46/81 Dt. 1.8.1984"

8. The State of Uttarakhand then known as State of Uttaranchal has

been curved out from the State of Uttar Pradesh. In the seniority list, the

first respondent was placed at serial number 137 whereas Mrs. Savita

(Mohan) Dhondyal was placed at serial No.102. Objections were filed to

the said seniority list wherefor recommendations were made by the

Directorate of Higher Education in the following terms :

"Dr. Joshi was appointed on ad hoc basis and pursuant to his appointment he joined Almora College on 22nd September, 1975. Later on his services were approved by the Director of Education (Higher Education), Uttar Pradesh, Allahabad on 27th March, 1976 with effect from the date of his joining the post. His name in the seniority list would have been mentioned at Sr. No.102 after the name of Smt. Deveshwari Bisht on the basis of his order of first appointment. But it would have been possible if his name would have been considered in the order of regularization dated 22nd May, 1980. It appears that his name was not included in the said order dated 22nd May, 1980 although Shri Joshi was fully eligible for being considered in the said order dated 22nd May, 1980 according to the Regularisation Rules of 1979. Therefore, if the Government so wishes, his order of regularization dated 11th July, 1980 should be amended to the above effect."

6 9. A writ petition was filed by the first respondent before the High

Court of Uttaranchal at Nainital which by reason of the impugned

judgment has been allowed.

10. Mr. Gopal Subramanium, learned Additional Solicitor General

appearing on behalf of the State, would submit that the High Court

committed a serious error insofar as it failed to take into consideration

that the State Uttaranchal, having framed the Uttaranchal Higher

Education (Group A) Service Rules, was bound by the provisions thereof

and in that view of the matter, the High Court committed a serious error

insofar as it failed to take into consideration the effect of the statutory

rules governing the field in their proper perspectives.

11. Mr. Garg, learned counsel appearing on behalf of the respondent,

on the other hand, would contend that as the instant case is governed by

the Rules which were applicable prior to coming into force of 2003

Rules, the High Court has not committed any illegality or the impugned

judgment is unassailable.

12. It was contended that in the writ petition it was not necessary for

the first respondent even to implead the said Savita (Mohan) Dhondyal 7

and others as party respondents, as no relief had been claimed against

them. Reliance has been placed on A. Janardhana v. Union of India &

Ors. [(1983) 3 SCC 601].

13. Services of the first respondent as also several others including

Savita (Mohan) Dhondyal, as noticed herein before were regularized in

terms of the provisions of the U.P. Regularisation Rules.

Indisputably, services of those whose names appear above the first

respondent, services of those were regularized w.e.f 22.5.1980 whereas

that of the first respondent was regularized from 11.7.1980. The order

dated 11.7.1980 categorically stated :

"Under Rule 4(3) of Uttar Pradesh Regularisation of Ad hoc Appointment within the purview of Public Service Commission Rules 1979 framed vide notification No.19/8/75 (1) dated 14-5-1979 by the Personnel Department, on the recommendation of the Selection Committee constituted for regularization of Lecturers appointed on ad hoc basis in the pay scale of Rs.700-1600 prior to 1-1-1977 in the U.P. Government Inter Colleges under the Directorate of Higher Education and in exercise of powers under Rule 5 of the aforesaid Rules the competent authority is pleased to regularize ad hoc appointment of Lecturers mentioned in the Schedule-1 w.e.f. the date of issuance of this order and they are given regular temporary appointment on the post of Lecturer w.e.f. 11.7.1980.

8 The seniority of these Lecturers will be as per the serial given in the schedule and they will be junior to the regularly selected Lecturers who have been appointed prior to the regular appointment of these Lecturers."

The said direction has not been set aside by the High Court.

Validity thereof may be in question in the writ petition.

14. The question as to which Rule would govern the inter se seniority

amongst the parties has not been determined. Rule was framed by the

State of Uttaranchal in 2003 in terms of the proviso appended to Article

309 of the Constitution of India.

Rule 3(k) defines `substantive appointment' to mean an

appointment, not being an ad hoc appointment, on a post in the cadre of

the Service made after selection in accordance with the rules and if there

are no rules in accordance with the procedure prescribed for the time

being by executive instruction issued by the Government.

15. Rule 20 of the said Rules lays down the mode of determining

seniority in the following terms :

"20. Seniority :

(1) Except as hereinafter provided, the seniority of persons in any category of posts 9

shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in that case it will mean the date of issue of order : Provided that -

(a) if the appointment order specified a particular back date with effect from which a person is appointed, substantively, that date will be deemed to be the date of order of substantive appointment and in other cases it will mean the date of issue of the order;

(b) 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 (2) of rule 17.

(2) The seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by the Commission :

Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when the post is offered to him. The decision of the Appointing Authority as to the validity of reasons shall be final. (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 said Rule also contains a power of relaxation being Rule 25

which is to the following effect :

10

"25. Relaxation of the Conditions of service :

Where the State Government is satisfied that the operation of any rule regulating the conditions of Service of a person appointed to the Service causes undue hardship in any particular case, it may notwithstanding any thing contained in the rules applicable to the case, by order dispense with or relax the requirements of that rule to such extent and subject to such conditions, as it may consider necessary, for dealing with the case in a just and equitable manner :

Provided that where a rule has been framed in consultation with the Commission that body shall be consulted before the requirements of the rule are dispensed with or relaxed."

16. The question as to whether the said Rules will have retrospective

effect or in any event will govern the cases of the parties, thus, was

required to be determined by the High Court.

17. The High Court, in its impugned judgment, proceeded on the basis

as to what would constitute a substantive appointment. The decisions of

this Court, whereupon strong reliance has been placed by the High Court

in arriving at its conclusion may not be of much significance but what is

significant is that in the writ petition even Savita (Mohan) Dhondyal and

others who lose their seniority in the event writ petition was to be

allowed, were not impleaded as parties. They, in our opinion, should 11

have been impleaded as parties in the writ application. Savita (Mohan)

Dhondyal and others, if the writ petition is allowed, would suffer civil

consequences. Inter se seniority may not be a fundamental right, but is a

civil right. [See State of UP & Anr. v. Dinkar Sinha [2007 (7) SCALE

8]. The respective rights of seniority of the parties, thus, required

determination in their presence.

18. A Three Judge Bench of Court in Prabodh Verma & Ors. v. State

of Uttar Pradesh & Ors. [AIR 1985 SC 167], stated the law as under :

"A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."

19. Reliance placed on A. Janardhana (supra) by Mr. Garg, in our

opinion, is misplaced. Therein, no relief was claimed against any 12

individual. The only relief which was claimed therein was against the

Union of India. The question which was raised therein was a question of

interpretation. It was in the aforementioned situation, this Court held

that all the employees were not required to be impleaded as a party. In

that case, the case of direct recruits has not gone unrepresented. It was

stated:

"In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus, the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondent."

20. For the reasons aforementioned, we are of the opinion that the

interest of justice would be subserved if the impugned judgment is set

aside and the matter is remitted to the High Court for consideration of the

matter afresh. In the writ petition, the first respondent may file an

appropriate application for impleading Savita (Mohan) Dhondyal and 13

others as parties and/or some teachers in their representative capacity.

The High Court is requested to allow the said application for

impleadment and determine the matter in accordance with law as

expeditiously as possible, preferably within the period of 8 weeks of the

communication of this Order.

21. The appeal is disposed of accordingly.

.............................J. [S.B. Sinha]

.............................J. [Lokeshwar Singh Panta]

New Delhi May 13, 2008