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Judgment
Ramesh Ranganathan, CJ
This writ petition is filed by the applicants in Claim Petition No. 10 / NB/DB/2014, before the Uttarakhand Public Services Tribunal, aggrieved by the order passed by the Tribunal dated 09.11.2016.
The petitioners herein filed a claim petition before the Tribunal seeking an order to set aside the impugned final seniority list of Office Assistants, Grade-I, as circulated vide letter dated 14.12.2011, passed by the third respondent. They also sought a direction to the respondents to prepare a seniority list afresh after reckoning the inter-se seniority of all employees from the date of their selection / promotion to the post of Office Assistants, Grade-II, and to direct the respondents to promote them to the post of Office Assistants, Grade-I from the date when the private respondents (who were juniors to them in the category of Office Assistant, Grade-II) were promoted; and to grant all other consequential benefits.
Facts, to the limited extent necessary, are that the petitioners were all appointed as Conductors in the respondent-Corporation during the years 1992 to 1997, admittedly after the unofficial respondents were appointed as such in the cadre of Conductors. The unofficial respondents were, admittedly, seniors to the applicants-petitioners herein in the cadre of Conductors. The respondent-Corporation undertook a selection process in the year 1995-96 to select candidates for appointment to the post of Office Assistants, Grade-II. While the applicants-petitioners were successful in the selection process, the unofficial respondents were not. Consequently, it is the applicants-petitioners who were appointed as Office Assistants, Grade-II, and not the unofficial respondents herein. Subsequently, in various recruitments ranging from 1996 to 2010, the unofficial respondents participated in the process of selection for appointment to the posts of Office Assistants, Grade-II, and were selected to the said posts.
A seniority list of Office Assistants, Grade-II was prepared reckoning the seniority of the applicants-petitioners and the unofficial respondents in the cadre of Conductors, and because the unofficial respondents were senior to the applicants-petitioners in the cadre of Conductors, they were placed above the applicants-petitioners in the seniority list of Office Assistants, Grade-II, though they were selected and appointed to the said post long after the applicants-petitioners were appointed. In some cases, the unofficial respondents were appointed more than 12 years after the applicants-petitioners were appointed as Office Assistants, Grade-II. On the objections raised by the applicants-petitioners to the said seniority list, the respondent-Corporation appears to have issued another seniority-list, wherein the applicants-petitioners were shown above the unofficial respondents. However, subsequently, the seniority list, whereby the applicants-petitioners were placed above the unofficial respondents, was cancelled, and the unofficial respondents were promoted to the post of Office Assistants, Grade-I treating them as senior to the applicants-petitioners. The petitioners herein questioned, the action of the respondents in cancelling the said seniority list, before the Tribunal.
In the order, impugned in this writ petition, the Tribunal observed that the seniority of the applicants-petitioners had to be determined in accordance with Regulation 31(2)(ii) of the Uttar Pradesh Road Transport Corporation Employees (Other than Officers) Service, Regulations, 1981 (for short 'the 1981 Regulations'); in terms of the said Regulation, the inter se seniority of persons, appointed by way of promotion, was to be the same as it was in the post from which they were promoted; seniority of the persons was required to be counted as per the seniority in the feeder category; in the present case, all the applicants-petitioners and the private respondents were initially appointed to the post of Conductors, which were in the feeder category; their seniority list was prepared by the respondent-Corporation on the basis of Regulation 31 of the 1981 Regulations; the seniority list, finalized on 14.12.2011, was in confirmity with Regulation 31; the subsequent Board's decision dated 11.09.2012 (whereby the selection, of all those individuals as Office Assistants Grade-II, was to be treated as a fresh appointment, and not as promotion) had no overriding effect over the Regulations issued under the Act; the post of Office Assistants Grade-II was a promotion post from that of Conductor; it could not be treated as a selection post against the Rules; the subsequent tentative seniority list dated 26.09.2013, whereby seniority was determined on the basis of the date of appointment as Office Assistant, Grade-II, was not as per law; this list was cancelled vide order dated 09.11.2013; and the seniority list, finalized by order dated 14.12.2011 as per Regulation 31, was correct. The Tribunal observed that, since the unofficial respondents were senior to the applicants-petitioners in the feeder category of Conductors, they regained their seniority in the posts of Office Assistants, Grade-II on their selection and appointment to the said posts; the respondent-Corporation had rightly issued the seniority list dated 14.12.2011; and their action, in cancelling the seniority list dated 26.09.2013, was valid. Aggrieved thereby, the present writ petition.
Sri Bhagwat Mehra, learned counsel for the applicants-petitioners, would submit that appointment to the post of Office Assistants, Grade-II was not on the basis of seniority; all employees of the Corporation who had completed three years of service, irrespective of the categories to which they belonged, were eligible to be considered for appointment to the said post; appointment to the post of Office Assistants, Grade-II was made by a duly constituted selection committee; Regulation 31(2)(ii) of the 1981 Regulations would apply only in the case of promotion, and not to selection posts; and a literal construction of Regulation 31(2)(ii) would result in absurd consequences, since even candidates, promoted more than a decade after those who were promoted earlier, would leap over them in the seniority list of Office Assistants, Grade-II, and would be entitled to be promoted to the next higher post of Office Assistants- Grade-I, even though they have put in far lesser years of service than persons, like the applicants-petitioners herein, who were appointed to the said post several years earlier; and, since the Regulations are ambiguous, the Board of Directors had rightly exercised their powers to clarify the matter in their Resolution dated 11.09.2012.
On the other hand both Sri Ashish Joshi, learned Standing Counsel for the respondent-Corporation and Sri Ganesh Kandpal, learned counsel appearing on behalf of the unofficial respondents, would submit, placing reliance on the Board's Resolution dated 10.05.1990, that the Board had resolved that the post of Office Assistants, Grade-II would be filled-up only by promotion from the cadre of Conductors; and, since Conductors were promoted to the post of Office Assistants, Grade-II, Regulation 31 (2)(ii) was attracted; and the seniority was rightly determined in terms of the inter-se seniority, of such candidates, in the feeder category of Conductors.
The 1981 Regulations were made by the respondent-Corporation, in the exercise of its powers under Section 45 (1) of the Road Transport Corporation Act, 1950 and are, therefore, statutory in character. Regulation 10 of the 1981 Regulations relates to 'creation of posts and the strength of the service'. Sub-Regulation (1) thereof stipulates that, subject to such directions as may be given by the State Government, the power to create posts shall vest in the Board or in any other authority to whom power in this behalf may be delegated by the Board. The Note below Regulation 10 states that a list of posts, existing at the time of commencement of these Regulations, was given in Annexure 'C'. Annexure 'C' to the Regulations classifies posts into three different categories. The first category are the posts attached with the Traffic and Workshop side, and Conductors are shown at Serial No. 11 thereof. The other two categories are posts in the Regions, Central Workshop, Central Stores and Allen Forest, and the posts attached to the Headquarters. The post of Office Assistant, Grades-II and I are shown at Serial Nos. 13 and 14 in the Regions, Central Workshop, Central Stores and Allen Forest category. Regulation 11 of the 1981 Regulations relates to the 'source of recruitment' and, under sub-Regulation (1) thereof, recruitment to various categories of posts in the service shall be made from one or more of the following sources as decided by the Board from time to time (a) by direct recruitment; (b) by promotion from amongst Corporation employees i.e. those who have put in atleast three years' service in the next lower post through a departmental test or interview in any other manner prescribed by the Board from time to time; (c) by deputation or on contract. Regulation 11(2) stipulates that, notwithstanding anything contained in sub-Regulation (1), recruitment may be made from any other source approved by the Board.
Appointment of the applicants-petitioners, and the unofficial respondents, as Office Assistants, Grade-II, does not fall in either Clause (a) or Clause (c) of Regulation 11 of the 1981 Regulations, since such appointments were not made by way of direct recruitment (which process would require all eligible candidates, both within and outside the Corporation, to be considered) or Clause (c) by way of deputation or on contract. Recruitment to the posts of Office Assistants, Grade-II is referable only to Clause (b) of Regulation 11(1) which is by way of promotion from amongst Corporation employees who have put in at least three years' service in the next lower post. In terms of Regulation 11(2) of the 1981 Regulations, which stipulates that, notwithstanding anything contained in sub-Regulation (1), the recruitment may be made from any other source approved by the Board, the Board of Directors of the respondent-Corporation passed a resolution on 10.05.1990 to the effect that, as per the decision taken by the sub-Committee of the Board of Directors, while abolishing the quota of direct recruitment for the post of Office Assistants, Grade-II, J.C.I./V.C. and Assistant Transport Inspector, all those posts shall be filled up hundred per cent by way of promotion from the cadre of Conductors; and the proceedings already drawn in this regard were also approved. In terms of this Resolution dated 10.05.1990, the posts of Office Assistants, Grade-II were required to be filled up hundred percent by way of promotion from the cadre of Conductors.
The applicants-petitioners, and the unofficial respondents, were all conductors who were later selected and appointed to the posts of Office Assistants, Grade-II. Both in terms of Regulation 11(1)(b), and the Resolution of the Board of Directors dated 10.05.1990 passed in terms of Regulation 11(2) of the 1981 Regulations, the source of recruitment, of the petitioners and the unofficial respondents, to the posts of Office Assistants, Grade-II is only by way of promotion. Regulation 31 of the 1981 Regulations relates to 'seniority' and, sub-Regulation (2) thereof, stipulates that seniority in any category of posts shall be determined from the date of continuous service followed by regular appointment and, if more than one person is appointed on the same date, from the order in which their names are arranged in the appointment order. Under proviso (ii) to Regulation 31(2), the inter se seniority of the persons appointed by promotion shall be the same as it was in the post from which they were promoted.
In view of Regulation 31(2)(ii) of the 1981 Regulations, even though the unofficial respondents were promoted to the posts of Office Assistants, Grade-II, long after the applicants-petitioners were so promoted, they were required to be treated as seniors to the applicants-petitioners in the seniority list of Office Assistants, Grade-II as they were seniors to the applicants-petitioners in the category of Conductors.
While we find considerable force in the submission of Sri Bhagwat Mehra, learned counsel for the petitioners, that application of these Regulations has resulted in a situation, where persons who were promoted to the posts of Office Assistants, Grade-II, more than 12 years after the applicants-petitioners were promoted to the said posts, have now taken a leap and are placed above the petitioners in the seniority list of Office Assistants, Grade-II and, thereby, promoted as Office Assistants, Grade-I before the applicants-petitioners were so promoted, it must not be lost sight of that there is a presumption regarding the constitutionality of Rules and Regulations. In the absence of a challenge to the validity of the Regulations, this Court must proceed on the premise that the Regulations are constitutionally valid, and, notwithstanding the fact that the Regulations apply harshly, it should be given effect to.
A writ of certiorari can be issued for correcting errors of jurisdiction such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344) as it is in the province of a court of appeal.
If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344).
Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that the other possible view, canvassed before it, is more attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344).
A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as, for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171 ; Syed Yakoob vs. K.S. Radhakrishnan and others : AIR 1964 SC 1344). A writ of certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the face of the record, which can be corrected, (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961 SC 970 ; Rex vs Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bora and Ors. Vs. The Commissioner of Hills Division and Appeals, Assam and Ors : AIR 1958 SC 398), and not every error either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs.The Standard Vacuum Oil Company Madras and Ors.: AIR 1965 SC 111; Bachan Singh and Ors. Vs. Gauri Shankar Agarwal and Ors : (1972) 4 SCC 257 ; Nagendra Nath Bora and Ors. Vs. The Commissioner of Hills Division and Appeals, Assam and Ors : AIR 1958 SC 398).
Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Ors : AIR 1961 SC 970), or require a detailed examination or an elaborate argument to establish it (Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Hari Vishnu Kamath Vs. Respondent:Syed Ahmad Ishaque and Ors. : AIR 1955 SC 233; Batuk K. Vyas Vs. Surat Borough Municipality and Ors : AIR 1953 Bom. 133). An error cannot be said to be apparent if one has to travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171 ; Sant Lal Gupta and Ors. Vs. Modern Co-operative Group Housing Society Ltd. and Ors. : (2010) 13 SCC 336).
It is not possible for us to hold that the Tribunal has committed such a grave error as to warrant interference by this Court in the exercise of its certiorari jurisdiction.
Viewed from any angle, we see no reason to quash the order passed by the Public Services Tribunal. The writ petition fails and is, accordingly, dismissed. No costs.