TaxTMI 
TaxTMI 
2006 (4) TMI 565
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....w Respondent No. 6-Vijay Kumar) were appointed 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 ....
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.... OFFICE ORDER For fixation of seniority of Shri Sushil Chandra Dwivedi, Assistant Engineer 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 sub....
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.... 7 of the Uttar Pradesh Development Authorities Rules, 1985, the Appellants were placed above the Respondent Nos. 2, 3, 4 and 6 in the seniority list. Questioning the said orders, Respondent Nos. 2 to 4 herein filed 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....
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.... of seniority was a matter which was within the exclusive domain of the State in respect whereof the High Court should not have exercised its power of judicial review. (iii) Reckoning of past services was directed to be made by this Court only in the cases: (a) where Army Officers were recruited 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 ....
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....past services could not have been ignored; (iv) Length of service being the ordinary law for reckoning seniority of the employees, the State of U.P. could not deny the benefits thereof to the Respondents; (v) Even assuming that the Respondent Nos. 2 to 4 gave concurrence to that effect that they would not be conferred the benefits of the services rendered in Jal 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 promote....
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....s appointed by promotion shall be the same as it was in the cadre from which they were promoted. (4) Notwithstanding anything in Sub-rule (1) the inter se seniority of persons appointed by direct recruitment and by promotion shall be determined from the date of joining the service in the case of direct recruits and from the date of continuous officiation in the case of promotees and where the date of continuous officiation of promotee and the date of joining of 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 t....
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....es those posts outside the purview of the Public Service Commission, but were to be filled up through direct recruitment only. It is not disputed that the State of U.P. has since issued a notification on 9.12.2002 whereby and whereunder Rule 7(1) of the Rules, 1985 stood substituted, in terms whereof the past services of only those officers and employees were to be counted who would finally be absorbed in the services in terms of Section 5-A(2) of the Act on the criteria of continuous length of service, including 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 e....
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....k of India and Ors. v. O.P. Swarnakar and Ors. (2003)ILLJ819SC ] Further more, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service. 15. We may now look into some decisions of this Court. 16. In Ram Janam Singh v. State of U.P. and Anr. (1994)ILLJ901SC , this Court held: ...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 Con....
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....ere the staff of a new department had been drawn from four different sources. Thus, in a case where employees were drawn from different sources, although as part of single scheme, which was considered to be a special situation, was formulated in that behalf, this Court opined: When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected. The courts 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....
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....rence between the two sources has a reasonable relation to the nature of the posts to which the recruitment is made. In that case, this Court upheld the provision contained in the seniority rules of the Income Tax Service, whereby a weightage was given to the promotees by providing that three years of outstanding work in Class II will be treated as equivalent to two years of probation in Class I (Grade II) Service. 20. In Wing Commander J. Kumar v. Union of India and Ors. [1982]3SCR453 , this Court negatived the contention that 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 fro....
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....its parent department to another Public Sector Undertaking unless a statutory rule exists in this behalf. In absence of such a rule, no employer can force an employee to join the services of another employer. Thus, K. Madhavan (supra), in our opinion, has no application in the instant case. 22. K. Anjaiah and Ors. v. K. Chandraiah and Ors. [1998]2SCR35 was again a case where this Court was concerned with multi source recruitment. In that case construction of Regulation 9 came under consideration, which is to the following effect: 9. (1) The persons 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 ....
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....e was sought to be determined by way of an executive order, which in turn was issued on the basis of a Memorandum dated 29.5.1986 issued by the Government of India. The Memorandum in question was neither made public nor the existence thereof was made known to any person involved in the controversy. The said Memorandum was not made ipso facto applicable to the employees. In the aforementioned factual backdrop referring to R.S. Makashi and Ors. (supra) and Wing Commander J. Kumar (supra), this Court observed: ...Therefore, it is reasonable to expect that a deputationist, when 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....
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.... "whichever is later" came up for consideration in the said decision and on interpretation of the Rule it was held that the earlier decision in R.S. Makashi and Ors. and Wing Commander J. Kumar would be applicable. It was, however, of some interest to note it was held that such a right of the Appellants-petitioners therein could not have been taken away in the garb of an Office Memorandum. In the aforementioned fact situation, the law was stated in the following terms: It is clear from the ratio laid down in the above case that any rule, regulation or executive instruction which has the effect 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 memora....
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....ted and they were not liable to be transferred to the Chief Office. The service conditions at the Chief Office were better, which was presumably the reason for the respondents to give up their claim based upon their past services. It is true that the differential advantage was not so substantial as to attract every LDC working in the district offices/units, and in that situation the letter Annexure 'B' had to be circulated. However, so far as the respondents and the two others were concerned, they found it in their own interest to forgo their claim of seniority on the basis of their past 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 ....
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.......We find sufficient force in the aforesaid contention of the learned Counsel appearing for the appellant. That the appellant was appointed as a Senior Auditor on being duly selected by the Member, Board of Revenue on 28-10-1966 is not disputed. It is also not disputed that his services were brought over to the Labour Department on requisition being made to all the government departments and on his name being sponsored by the Revenue Department. It is no doubt true that the Labour Department had indicated that the seniority will be determined on the basis of the date of joining of the Labour Department itself but the appellant had at no 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 be....