TaxTMI 
TaxTMI 
2006 (4) TMI 565
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....ppointed in U.P. Jal Nigam on 5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively. Several town planning authorities including Ghaziabad Development Authority were created by Uttar Pradesh Urban Planning and Development Act, 1973 ('the Act', for short) with a view to provide for development of certain areas of State of Uttar Pradesh according to the plans and for other matters incidental thereto. Section 4 of the Act empowers the State Government to issue a notification constituting a development authority for any development area. In exercise of the said power, the State of U.P. constituted various development authorities, including the Ghaziabad Development Authority. By reason of U.P. Act No. 21 of 1985, the State of U.P. inserted Section 5-A in the said Act to create centralized services of all the development authorities, Sub-sections 1 and 2 whereof read as under: -A (1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more 'Development Authorities Centralized Services' for such posts, other than the posts mentioned in....
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....neer in Authority Centralised Services, the Government Order No. 416912/9Aa-5-91/94 dated 6.11.95 with respect to inclusion of service rendered by him in State Planning Institute was not found legal in view of Rule 7(1) of Authority Centralised Services Rules. Consequently, after consideration, the said order dated 6.1.95 is hereby cancelled. 2. As a result, in Authority Centralised Services on the post of Assistant Engineer, in the Seniority list declared vide Government Order No. 1596/9 Aa-5-95- 1235/95 dated 12.4.96, the seniority of Shri Dwivedi is ordered by the Governor to be fixed below Shri Anil Kumar Goel shown at serial no. 64 and in order of seniority at serial no. 6 above Shri Ramesh Kumar at serial 64A in order of seniority. Illegible Chief Secretary 4. The Respondents herein, admittedly, resigned from their services from U.P. Jal Nigam. The Respondent No. 2 accepted the said offer of the State in terms of his letter dated 27.8.1987 stating: With regard to the conditions stated in your Office memo referred to above on the aforementioned subject, I submit as follows: (a) The applicant fully accepts the condition Nos. 1,2,3,4 mentioned in your Office Memo, where....
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....ed a writ petition before the Allahabad High Court praying, inter alia, for the following relief: i. To issue a writ order or direction in the nature of mandamus commanding the respondents to give benefit of past service to the petitioners rendered by them in the parent department and to treat the petitioners for promotion or promote them when the juniors were considered and promoted else they shall suffer irreparable loss and injury. 6. By reason of the impugned order dated 4.4.2003, the said writ petition has been allowed. The High Court, relying on or on the basis of the decision of this Court in Sub-Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors. AIR2000SC594 , opined: (1) That refusal on the part of the State to grant benefit of past service in U.P. Jal Nigam in favour of the Respondents is violative of Articles 14 and 16 of the Constitution of India; (2) By reason of acceptance of offer to give up their past services, the optees did not and could not have waived their fundamental right and, thus, acceptance of the conditions for their absorption was not material; (3) In view of the fact that similar benefits were granted by the cour....
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....ruited during national emergencies and where such past services were directed to be counted in terms of the Rules; (b) where recruitment had been made from multi sources including that of deputation; (iii) The said principles would not, thus, apply to the present case having regard to the provisions of Section 5-A of the Act and in that view of the matter, Articles 14 and 16 of the Constitution cannot be said to have any application whatsoever; (iv) Doctrine of Election would apply in the case of Respondents as they had a choice to refuse absorption and ask for their reversion to the parent department, but having not done so, they cannot now be allowed to turn round and contend that they had been discriminated against; (v) The Respondents having accepted conditional appointment as far back in the year 1987 and 1994, could not have filed a writ petition in the year 2000 which, thus, suffering from inordinate delay and latches, the writ petition should have been dismissed. (vi) The Respondent Nos. 2 to 4, having not been absorbed in terms of Section 5-A of the Act, the provisions of Rule 7 of the Rules, 1985 were not attracted. 8. The learned Counsel appearing on behalf of t....
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.... Nigam, for fixation of seniority they are at least entitled to the seniority from the date of their deputation till the date of their absorption as the decision on their offer could not have been taken after an unreasonable period, which is itself violative of Article 14 of the Constitution of India; (vi) The State or for that matter the Authority, during the pendency of the cases of the Respondents, could not have made ad-hoc appointments and give seniority to those ad-hoc employees. (vii) The High Court has rightly followed the cases and the decisions passed in Sushil Chandra Dwivedi and Brij Mohan Goel as seniority had been given to them, although they were appointed on work charge basis and they have not only been promoted to the post of Executive Engineer, they have also been promoted to the post of Superintending Engineer. Sections 2(vi) and 2(vii) of the Act are: 2(vi) 'Member of the service' means a person absorbed against or appointed to a post in the cadre of the service under these rules; (vii) 'Service' means the Uttar Pradesh Development Authorities Centralised Services created under the Act. 10. Rule 7(1) of the U.P. Development Authorities....
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....the direct recruit is the same, the person appointed by promotion shall be treated as senior: Provided that where appointments in any years of recruitment are made both by promotion and direct recruitment and the respective quota of the source is prescribed, the inter se seniority shall be determined by arranging the names in a combined list in accordance with Rule 17 in such manner that the prescribed percentage is maintained. Rule 37 of the Rules states: 37. Regulation of other matters.- (1) If any dispute of difficulty arises regarding interpretation of any of the provisions of these rules, the same shall be referred to the government whose decision shall be final. (2) In regard to the matters not covered by these rules or by special orders, the members of service shall be governed by the rules, regulations and orders applicable generally to U.P. Government servants serving in connection with the affairs of the State. (3) Matters not covered by Sub-rules (1) and (2) above shall be governed by such orders as the Government may deem proper to issue. Part III of the Rules, 1985 deals with Suitability or Provisionally Absorbed Persons, Part VII deals with Appointment, Prob....
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....cluding the service rendered in Development Authority, Nagar Mahapalika, Nagar Palika or Improvement Trust on similar posts. The Respondent Nos. 2 to 4 were not and could not have been absorbed under Section 5-A(2) of the Act and thus evidently Rule 7(1) is not attracted. The only Rule, which provides for seniority, is Rule 28. Rules 7 and 28, as noticed hereinbefore, occur in different Chapters providing for different situations. 13. The Respondent Nos. 2 to 4, therefore were not entitled to the benefits of Rule 7. In terms of the rules, there is no provision for appointment by way of transfer. There is also no provision for appointment on permanent absorption of the deputed employees. The only provision which in the fact situation obtaining in the present case would apply and that too in the event the State intended to absorb the employees of Jal Nigam, would be Section 7(1) of the Act and Sub-Rule (2) of Rule 37 of Rules, 1985. Seniority, as is well settled, is not a fundamental right. It is merely a civil right. [See Bimlesh Tanwar v. State of Haryana [2003]2SCR757 , paragraph 49 and also Prafulla Kumar Das and Ors. v. State of Orissa and Ors. AIR2003SC4506 The High Court evid....
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....: ...It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum-merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career which can be affected by....
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....s will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in appeal and examine the propriety or wisdom of the principle of equation of posts adopted by the Government. In the instant case, we have already indicated our opinion that in equating the post of Supply Inspector in the CFD with that of Clerk with two years' regular service in other government departments, no arbitrary or unreasonable treatment was involved. Despite the fact that the Court held that a rule whereby full benefits having been given and two years' period had been reduced is not ultra vires it was stated: The reasons stated by the learned Single Judge of the High Court for declaring the aforesaid rule to be arbitrary and violative of Article 16 of the Constitution do not appeal to us as correct or sound. Almost the entire reasoning of the learned Single Judge is based on an assumption that there is an invariable "normal rule" that seniority should be determined only on the basis of the respective dates of appointment to the post and that any departure from the s....
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.... any employee had acquired vested right to have his seniority reckoned with reference to the date of his permanent secondment and to all officers joining the organisation on subsequent dates ranked only below him. The question, which fell therein for consideration was as to whether the principle enunciated in Rule 16 can be said to be unreasonable or arbitrary. The Court took into consideration the factual aspect of the matter and held that it will not be reasonable, just or fair to determine the seniority of the permanently seconded service personnel merely on the basis of the date of their secondment to the Organization. In that case also Officers from three services holding different ranks were inducted into the R & D Organisation. Unreasonable consequence that flowed from the acceptance of the arguments of the Appellant therein were considered opining: ... When due regard is had to all the aspects and circumstances, narrated above, it will be seen that the principle adopted under the impugned rule of reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonable mean as it ensures to all the service officers in the....
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....ersons drawn from other departments will carry on their service and they will be treated as on other duty for a tenure period to be specified by the Commission or until they are permanently absorbed in the Commission whichever is earlier. (2) The services of those staff members working in the Commission on deputation basis and who opted for their absorption in the Commission, shall be appointed regularly as the staff in the Commission, in the cadre to which they belong, as per the orders of Government approving their appointments batch by batch and to determine the seniority accordingly. For this purpose the Commission may review the promotions already affected. Therein, thus, existed a provision for appointment by way of absorption of the deputationist. The said Regulation was declared unconstitutional by the Tribunal. This Court, however, having regard to the fact situation obtaining therein, thought it fit to uphold the Regulations stating: ...that the phraseology used in Regulation 9(2) is no doubt a little cumbersome but it conveys the meaning that the total length of service of these deputationists should be taken into account for determining the inter se seniority in th....
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....en his service is sought to be absorbed in the transferred department would certainly have expected that his seniority in the parent department would be counted. In such a situation, it was really the duty of the respondents, if at all the conditions stipulated in the impugned memorandum were applicable to such person, to have made the conditions in the memorandum known to the deputationist before absorbing his services, in all fairness, so that such a deputationist would have had the option of accepting the permanent absorption in the Delhi Police or not. In that case a Coordinate Bench of the Tribunal had opined that those personnel who were drawn from other departments were entitled to get their past services counted for the purpose of seniority. The said decision attained finality. In the case of the Appellant herein, the benefit of the said judgment was not extended and the question was sought to be reopened stating that the post of Sub-Inspector in BSF was not equal to the post of Sub-Inspector in the Delhi Police. The relevant part of the Memorandum issued on 29.5.1986, which was relied upon, reads thus: Even in the type of cases mentioned above, that is, where an officer....
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....ect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the appellant-petitioners and the offending words in the memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned memorandum. Consequently, the right of the appellant- petitioners to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub- Inspector (Executive) in the Delhi Police, is restored. For the said reasons only the executive instruction was held to be ultra vires Articles 14 and 16 of the Constitution of India. It was further held that by reason....
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....services and they did so. 26. In U.P. Awas Evam Vikas Parishad and Ors. v. Rajendra Bahadur Srivastava and Anr. (1996)IILLJ679SC , this Court opined: ...In view of the unequivocal undertaking given by the first respondent, it is no longer open to him to contend that his dismissal (sic termination) order of 1971 was illegal. He approached the High Court in 1991 seeking to quash his termination order of 1971 after securing conditional reinstatement. His challenge after his appointment on his representation and acceptance of conditions subject to which he was to be appointed is an attempt to overreach his goal in a circuitous route. It is hard to accept that within a short period of five months he has shown such a remarkable capabilities in discharging duties as appeared to be commendable to the officers recommended in the letters relied on by the respondent. 27. Yet again in Union of India and Anr. v. Onkar Chand and Ors. AIR1998SC945 , this Court was considering the effect of clause 7(iii) of the Recruitment Rules, which was applicable therein. The said rule reads thus: Where a person is appointed by transfer in accordance with provision in the Recruitment Rules providing for ....
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....o point of time agreed to the said condition, and on the other hand, unequivocally expressed his unwillingness to come over to the Labour Department by letter dated 6-11-1970 and without consideration of the same the Revenue Department relieved him requiring him to join in the Labour Department. It was thus, open to the Respondents herein not to agree to in spite of the said conditions as they had already been working with a statutory authority, they, however, expressly consented to do so. They must have exercised their option, having regard to benefits to which they were entitled to in the new post. Once such option is exercised, the consequences attached thereto would ensue. [See HEC Voluntary Retd. Emps. Welfare Soc. and Anr. v. Heavy Engineering Corporation Ltd. and Ors. (2006)IILLJ245SC 29. There is another aspect of the matter. The Appellants herein were not joined as parties in the writ petition filed by the Respondents. In their absence, the High Court could not have determined the question of inter se seniority. [See Prabodh Verma and Ors. v. State of U.P. and Ors. [1985]1SCR216 ] In Ram Janam Singh (supra) this Court held: ...It is now almost settled that seniority ....