Ashok Kumar And Others vs Kailash Chandra Peinuly And Others

Ramesh Ranganathan, CJ

Heard Sri Vinay Kumar, learned counsel for the petitioners in Writ Petition (S/B) No. 264 of 2019, Sri C.S. Rawat, learned Additional Chief

Standing Counsel appearing on behalf of the petitioner in Writ Petition (S/B) No. 344 of 2019, and Sri Subhash Upadhyay and Sri Sanjay Raturi,

learned counsel appearing for respondent no. 1 (the petitioner in Claim Petition No. 42/DB/2018).

The jurisdiction of this Court has been invoked by the petitioners (who were the respondents before the Public Services Tribunal) seeking a writ of

certiorari to quash and set aside the judgment and order of the Public Services Tribunal dated 25.03.2019 in Claim Petition No. 42/DB/2018. Parties

shall be referred, hereinafter, as they are arrayed in Writ Petition (S/B) No.264 of 2019.

Facts, to the limited extent necessary, are that all the four petitioners were appointed as Junior Engineers by direct recruitment in the months of

May, June, and August, 2005. While the recruitment year of petitioner nos. 1, 2 and 4 is 2004-05, the recruitment year of the third-petitioner is 2005-

The petitioners were selected and appointed as Junior Engineers by direct recruitment as they fulfilled the prescribed qualifications of having

obtained a Diploma in Engineering.

On the other hand, the first respondent herein was appointed as an ad hoc Engineer on 16.10.1982, and his services were regularized as a Junior

Engineer on 16.12.1987. While all the four petitioners were promoted as Assistant Engineers on 11.03.2011, the first-respondent was promoted to the

post of Assistant Engineer, thereafter, on 09.04.2013. The first respondent herein invoked the jurisdiction of the Public Services Tribunal seeking a

direction to the official respondents to modify the seniority list dated 06.07.2017 in so far as it related to the inter-se seniority between him and the

petitioners, to treat him as senior to them on the basis of the catch-up rule, and to place his name above theirs in the seniority list, keeping in view the

provisions of the Uttarakhand Jal Sansthan Engineers Service Rules, 2011 (for short the “2011 Rulesâ€) with special emphasis on the Explanation

to Rule 6 of the Government Servant Seniority Rules, 2002 (for short the “2002 Rulesâ€​).

A seniority-list of Assistant Engineers, working in the Uttarakhand Jal Sansthan, Dehradun, was finalized on 06.07.2017, wherein the petitioners

herein were shown as senior to the first-respondent herein on the ground that they were appointed by promotion as Assistant Engineers on 11.03.2011

before the first-respondent was promoted to the said post on 09.04.2013. The first-respondent herein, however, claimed that, since Rule 24(3) of the

2011 Rules required the inter-se seniority of persons, appointed by promotion, to be the same as it was in the cadre from which they were promoted,

and as he was appointed as a Junior Engineer (the cadre from which they were all later promoted as Assistant Engineers) on 16.12.1987 long before

the petitioners were appointed as Junior Engineers by direct recruitment in the year 2005, the catch-up rule in Rule 24(3) would apply, and he ought to

have been shown as senior to the petitioners in the 2017 seniority-list. Reliance was also placed by him on Rule 24(1) of the 2001 Rules, which makes

the 2002 Rules applicable in determining the seniority of persons, as also to Rule 6 of the 2002 Rules, details of which shall be referred to hereinafter.

The petitioners, on the other hand, relied on Rule 7 of the 2002 Rules, more particularly to the second proviso thereto, to contend that, since they

were substantially appointed in the posts of Assistant Engineer prior to that of the first respondent-claim petitioner, it is they who were rightly shown

as seniors and the claim of the first-respondent, to the contrary, was liable to be rejected.

In the order, impugned in the writ petition dated 25.03.2019, the Tribunal held that Rule 24(3) stipulated that the inter-se seniority of persons

appointed by direct recruitment shall be the same as in the cadre from which they were promoted; the claim-petitioner and the private respondents

(writ petitioners herein) were both Junior Engineers before being promoted as Assistant Engineers; it was not their case that the appointments were

made both by promotion and direct recruitment or from more than one source; and, therefore, Rule 24(4) of the 2011 Rules was not applicable, and it

was Rule 24(3) which was applicable.

The Tribunal observed that there was a single feeder cadre of Junior Engineer to which both the claim-petitioner and the private respondents

belonged; the claim-petitioner was, admittedly, senior in the feeder cadre of Junior Engineer, though he was promoted as Assistant Engineer after the

promotion of the private-respondents (petitioners herein), who were, admittedly, junior to him in the feeder cadre; and the claim-petitioner should

regain his seniority in the cadre of Assistant Engineer, as he was senior in the feeder cadre of Junior Engineers according to the Explanation appended

to Rule 6 of the 2002 Rules.

The Tribunal further held that, for determination of seniority, Rule 8(1) should be read with, and subject to the provisions of, Rule 8(2)(a), Rule 8(2)

(b) and Rule 8(3) of the 2002 Rules; the Explanation to Rule 6 made it clear that seniority should be regained by the person who was senior in the

feeder cadre; Explanation to Rule 6 clearly established the supremacy of seniority in the feeder cadre irrespective of the date or time of promotion;

and the claim-petitioner was entitled to regain his seniority over the private respondents (the petitioners herein) in the cadre of Assistant Engineers.

The seniority-list dated 06.07.2017 was set aside, and the official respondents were directed to draw a fresh seniority-list, in accordance with the 2002

Rules read with Rule 24 of the 2011 Rules, within four months. Aggrieved thereby, the present writ petition.

Before taking note of the rival submissions, it is necessary to note that the 2011 Rules were made by the State Government in the exercise of the

powers conferred on them by Section 27-A of the Uttar Pradesh Water Supply and Sewerage Act, 1975 and in supersession of all existing orders and

rules in this regard. The 2011 Rules were published in the Gazette on 02.12.2011 and, in terms of Rule 1(3) thereof, came into force from that date i.e.

02.12.2011.

Rule 24 of the 2011 Rules relates to ‘seniority’ and reads as under:

Seniority-24(1) Except as hereinafter provided the seniority of any person shall be fixed in accordance with the Uttarakhand Government Servants

(Fixation of Seniority) Rules, 2002. If two or more persons are appointed together, by such order in which their names are arranged in the

appointment:

Provided that if the appointment order specifies a particular back date with effect from which a person is deemed to be substantively appointed that

date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order.

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

or commission, as the case may be.

Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him.

(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.

(4) Where appointments are made both by promotion and direct recruitment or from more than one source and the respective quota of the sources is

prescribed, the inter se seniority shall be determined by arranging the names in a cyclic order in a combined list prepared in accordance with rule 20, in

such manner that the prescribed percentage is maintained:

Provided that â€

(a) where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down,

for seniority, to subsequent year or years in which there are vacancies in accordance with the quota.

(b) where appointments from any source fall short of the prescribed quota and appointments against such unfilled vacancies are made in subsequent

year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are

made, so however, that in the combined list of that year (to be prepared under this rule) their names shall be placed at the top followed by the names,

in the cyclic order, of the other appointee:

(c) where, in accordance with the rules or prescribed procedure, the unfilled vacancies from any source could, in the circumstances mentioned in the

relevant rules or procedure be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the

seniority of that very year as if they are appointed against the vacancies of that quota.

It is no doubt true that, in terms of Rule 24(1), seniority of a person is required to be fixed in accordance with the 2002 Rules. Rule 24(1),

however, begins with the words “Except as hereinafter providedâ€. Consequently the 2002 Rules would apply, in terms of Rule 24(1) of the 2011

Rules, except as provided thereafter i.e. except as provided in Clauses (2) to (4) of Rule 24. Rule 24(3) of the 2011 Rules, as noted hereinabove,

requires the inter-se seniority of persons appointed by promotion to be the same, as it was in the cadre from which they were promoted.

Consequently, if the 2011 Rules were to apply, seniority should then be determined in accordance with Rule 24(3) of the 2011 Rules, and not under the

2002 Rules. The fact, however, remains that the Tribunal failed to note that the petitioners had already been promoted as Assistant Engineers on

11.03.2011, long before the 2011 Rules came into force on 02.12.2011 and, consequently, the seniority of the petitioners would be governed by the

Rules, which were in force when they were promoted as Assistant Engineers on 11.03.2011, and not the 2011 Rules, which came into force,

subsequent thereto, on 02.12.2011.

At this juncture, it is necessary to note the submission, urged on behalf of the first-respondentâ€"claim petitioner, that none of the parties before

the Tribunal had pleaded that the 2011 Rules were inapplicable; and, since the Tribunal had adjudicate the lis on the basis of the pleadings of the

parties before it, this contention cannot be raised for the first time in writ proceedings wherein the order of the Tribunal is subjected to challenge.

As noted hereinabove, the 2011 Rules are statutory in character since they were made in the exercise of the power conferred on the State

Government under Section 27-A of the Uttar Pradesh Water Supply and Sewerage Act, 1975. Likewise, the 2002 Rules were made by the Governor

in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The Rules, which were in force when the petitioners

herein were promoted as Assistant Engineers on 11.03.2011, were the Uttar Pradesh Palika and Jal Sansthans Water Works Engineering

(Centralised) Service Rules, 1996 (for short the “1996 Rulesâ€), which were made in the exercise of the powers conferred under Section 112-A of

the Uttar Pradesh Municipal Corporation Act, 1959, Section 69-B read with Section 296(2)(a) of the Uttar Pradesh Municipalities Act, 1916 and

Section 27-A of the Uttar Pradesh Water Supply and Sewerage Act, 1975. The 1996 Rules are also statutory in character. In effect, the 1996 Rules,

the 2002 Rules and the 2011 Rules all constitute “lawâ€​.

Failure on the part of the Tribunal, or the parties thereto, to notice that it is the 1996 Rules which would govern, and not the subsequent 2011

Rules, would not disable the High Court, in the exercise of its certiorari jurisdiction, to correct this error, since it amounts to an error of law apparent

on the record, which can be corrected by the High Court in the exercise of its certiorari jurisdiction (Syed Yakoob Vs. K.S. Radhakrishnan and others

: AIR 1964 SC 477). The right which vests in the petitioners, to be extended the benefit of seniority from the date of their promotion as Assistant

Engineers on 11.03.2011, cannot be taken away by the 2011 Rules subsequently made on 02.12.2011, more so since the 2011 Rules have prospective

application from 02.12.2011, the date on which these Rules came into force.

Since it is the 1996 Rules which apply, and not the 2011 Rules, it is necessary to note what the 1996 Rules provide with respect to seniority. Rule

26 of the 1996 Rules relates to ‘seniority’, and stipulates that seniority on a post in the Centralised Services shall be determined by the date of

substantive appointment provided that, if two or more candidates are appointed from the same date, their seniority shall be determined according to the

order in which their names appear in the list prepared under Rules 20 and 21. Rule 26 also refers to Rule 24 of the Palika Rules.

Both Sri C.S. Rawat, learned Additional Chief Standing Counsel appearing on behalf of the State Government, and Sri Vinay Kumar, learned

counsel appearing on behalf of the petitioners in Writ Petition (S/B) No. 264 of 2019, fairly state that this fact was not brought to the notice of the

Tribunals, and it is the 1996 Rules which should govern determination of seniority of the petitioners, since their appointment as Assistant Engineers on

11.03.2011 was before the 2011 Rules came into force on 02.12.2011. If Rule 26 of the 1996 Rules were to apply, the inter-se seniority of the first

respondent and the petitioners, must then be determined only from the date of their substantive appointment as Assistant Engineers and, consequently,

it is the petitioners who would be entitled to be held seniors to the first-respondent-claim petitioner.

While Rule 26 of the 1996 Rules, no doubt, governs seniority, it does not specifically deal with the catch-up rule. Sri Sanjay Raturi, learned counsel

for the first-respondent, would draw our attention to Rule 46 of the 1996 Rules to contend that, in terms thereof, the 2002 Rules would apply and,

consequently, the Explanation appended to Rule 6 of the 2002 Rules would govern determination of seniority, which would then require application of

the catch-up rule in determining seniority in a particular cadre or post.

Rule 46 of the 1996 Rules reads as under:

Regulation of other matters.â€"In regard to the matters not specifically covered by these rules, persons appointed to the centralized services

including the Palika and Jal Sansthan Hill Sub-Cadre, shall be governed by the rules, regulations and orders applicable generally to Government

servants serving in connection with the affairs of the State. (Please see Palika Rule 48).

It does appear from Rule 46 that, in so far as matters for which no provision has been made in the 1996 Rules, the rules applicable to government

servants would apply, in which event it is possible to contend that, since the 1996 Rules do not specifically provide for the catch-up principle, the 2002

Rules, in so far as it provides for the application of the catch-up rule, would apply.

We, however, see no reason to undertake any examination of these contentions, since we are satisfied that the Tribunal should examine them in

the first instance. It is no doubt true that, failure on the part of the Tribunal to examine these aspects was because of the failure of the parties to bring

to its notice the existence of the 1996 Rules, or that the petitioners, having been promoted as Assistant Engineers on 11.03.2011 prior to the 2011

Rules coming into force on 02.12.2011, would only be governed by the 1996 Rules and not the 2011 Rules. That would, however, not disable the

Tribunal from re-examining these issues in the light of the Rules referred to hereinabove.

We consider it appropriate, in such circumstances, to set aside the order passed by the Tribunal (impugned in the writ petition), and restore the

Claim Petition to file. Since the matter has been pending for a considerable length of time, we request the Tribunal to adjudicate this dispute at the

earliest and, in any event, within two months from the date of production of a certified copy of this order.

Sri Sanjay Raturi, learned counsel for the first-respondent, would submit that the petitioners have already been promoted as Executive Engineers

during the pendency of the writ petition; the first-respondent continues to remain an Assistant Engineer; a Departmental Promotion Committee is likely

to be convened shortly to consider promoting Executive Engineers to the posts of Superintending Engineers; and, in case the petitioners are promoted

to the post of Superintending Engineers, the first-respondent would suffer irreparable injury.

When we asked Sri Sanjay Raturi, learned counsel, whether there was any interim order in force during the pendency of the Claim Petition before

the Tribunal, learned counsel would fairly state that there was none. It would be wholly inappropriate for us, therefore, to consider granting an interim

order, till the Claim Petition is decided, in a writ petition filed not by the first-respondent (claim petitioner) but by the petitioners in the Writ Petition.

Suffice it, to protect the interest of the first respondent-claim petitioner, to make it clear that the order now passed by us shall not disable him from

moving an IA before the Tribunal, and for the Tribunal to consider the said IA in accordance with law. It is also open to the first respondent-claim

petitioner to request the Tribunal to waive the 14 day requirement.

Both the writ petitions are disposed of accordingly. No costs.

Let a certified copy of this order be supplied to the learned counsel for the parties, on payment of the prescribed charges, by 17.06.2020.