Service Law: Seniority list – Appellants working as Junior Engineers belonging to Mechanical and Civil Streams whereas respondents from agricultural stream – Plea of the appellants that in the seniority list, the department had placed the candidates of the three lists- Agricultural, Mechanical and Civil in the same sequence as they were received with their inter se seniority in their respective lists, the agricultural stream on the top, thereafter mechanical and lastly the civil stream – Writ petition by the appellant challenging the seniority list – Single Judge quashed the seniority lists and directed the department to draw a fresh seniority list in accordance with Rules 1991– However, the Division Bench set aside the order – On appeal, held: Seniority list was prepared by the Department in contravention to the statutory provision laid down in Rules 1991 – Appointing Authority would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list – It would be arbitrary, de hors the rules and in conflict with Arts 14 and 16 – Appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission – Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate – Appointing Authority erred in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists – Furthermore, the delay of three to four years in filing the matter satisfactory explained; and the non-joining of all the affected junior engineers not fatal – Thus, the order passed by the Single Judge of the High Court upheld – Uttar Pradesh Government Servants Seniority Rules, 1991 – rr. 5, 8 – Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules, 2009 – Constitution of India – Arts. 14 and 16(1).
Service Law: Promotion – Right to promotion – Held: Is not considered to be a fundamental right but consideration for promotion has now evolved as a fundamental right – Constitution of India – Art. 14 and 16(1).
Jurisprudence: Service jurisprudence – Impleadment of parties – Held: It is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected – Impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity – Non-joining of all the parties not fatal. Allowing the appeals, the Court
HELD: 1.1 There was one selection for the three streams i.e. Agricultural, Mechanical and Civil. There is one cadre of Junior Engineers in the Minor Irrigation Department and therefore, there has to be one seniority list of Junior Engineers. [Para 18][1201-B-C]
1.2 The Appointing Authority, in fact, committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists. It is not the case either of the private respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000. Apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under the Uttar Pradesh Government Servants Seniority Rules, 1991, be it Rule
5 or Rule 8 with respect to the selection of the appellants and private-respondents. [Para 20][1203-C-E]
1.3 In October, 2001, when the appointment letters were issued it carried a stipulation that the seniority would be determined later on as per rules. It is an admitted position that before 2006, the seniority list of the appellants was not notified. In March, 2006, when the tentative list was published, it did not mention about the three select lists nor was this fact mentioned when the final seniority list was published on 05.09.2006. Rather, it clearly mentioned that the seniority list had been prepared on the basis of merit. This was in fact an incorrect statement. The seniority list had not been prepared on the basis of merit but on the basis of receipt of the three separate select lists one after the other. As the Agricultural list was received first on 28.09.1999, all the selected candidates of agricultural stream were en bloc placed on the top, thereafter the Mechanical list was received on 06.01.2000, they were placed below the Agricultural stream and lastly, the Civil stream list was received on 07.11.2000, they were placed at the end. [Para 25][1205-A-D]
1.4 Rules 5 and 8 of Rules 1991 clearly mention that there shall be one list for one selection of direct recruits. Creating three separate lists for one selection was contrary to the provisions contained in Rules 5 and 8 of Rules 1991. Rules 2009 clearly mention that seniority would be determined and prepared as per 1991 Rules. Rule 5 of Rules 1991, dealt with the selections made only through direct recruitment whereas Rule 8 thereof dealt with the situation where seniority list is to be prepared of both the direct recruits and the promotees. However, the principles underlined in both these Rules are the same that there has to be one list for one selection, as is clear from Rule 8(2)(a) and Rule 5 of Rules 1991. [Para 26][1205-D-F]
1.5 Once it is established that the seniority list was prepared in contravention to the statutory provisions laid down in Rules 1991, the seniority list could be interfered with. The Appointing Authority would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list. The same would be arbitrary, de hors the rules and in conflict with Articles 14 and 16 of the Constitution. The only exception would be where there is unreasonable delay which is unexplained. [Para 27][1205-F-G]
1.6 In the facts of the instant case, it is found from the final seniority list of 05.09.2006 that it nowhere mentioned that there were three separate lists of separate streams and that they were received on different dates. On the contrary, there was a recital therein and specific averment to the effect that the list had been prepared on the basis of merit. Thus, it cannot be said that the appellants were aware of the three separate select lists dispatched by the Commission on three different dates at the time of publication of final list dated 05.09.2006. [Para 28][1206-A-C]
1.7 The appellants had no occasion to know about the three separate lists either at the time they were dispatched by the Commission or at any time thereafter as the appointment letters of all selected candidates of all the three streams were issued simultaneously under Office Order dated 08.10.2001. The order finalizing the seniority list of 05.09.2006 also nowhere mentioned that three separate lists of three streams were received from the Commission and placed en bloc as received one after the other. [Para 29][1206-C-D]
1.8 At the time of notifying the tentative list on 29.12.2009, it was not stated anywhere that there were three separate lists received on three different dates. As such it could not be alleged that the appellants even at that stage did not file objections regarding preparation of common seniority list. It was only when the final seniority list was published on 05.03.2010 and in the order finalizing the list, it was mentioned by the department that there were three separate lists received on three separate dates and in that sequence the combined seniority was prepared. Thus, it is for the first-time that appellants came to know of the error on publication of the final seniority list on 05.03.2010. [Paras 30][1206-E-F]
1.9 The respondents have not been able to show any material which could clearly indicate that the appellants had knowledge of three separate lists and the preparation of the seniority list on its basis. [Para 31][1206-F-G]
1.10 After coming of Rules 2009, fresh exercise was undertaken for preparation of seniority list. A tentative list was notified by the Office Order dated 29.12.2009. This Office Order mentions that the seniority list has to be prepared according to 1991 Rules. While dealing with the finalization of this tentative list, vide office order dated 05.03.2010, there is reference to disposal of an objection by MC and MK in which they had apparently sought clarification regarding the requisition send to the Commission and other related aspects. In paragraph 11 of the Office Order, it is mentioned that the Commission had forwarded the three lists of the Agriculture, Mechanical and Civil streams separately on 06.01.2000, 27.01.2000 and 07.11.2000 respectively. It further mentioned that it was in that sequence i.e. the date of receiving that the combined seniority was assessed. Thus, again the seniority list was finalized in the same sequence as the three lists have been received and in that order. It is thereafter that the representations were made that the seniority list of the direct recruits of 2001 was wrongly prepared contrary to the Rules, however, when no action was taken, RN and fourteen others approached the High Court which was within a period of two to two and half years and till such time they had been pursuing their representation after office order dated 05.03.2010. Thus, it is clear that in the first contingency or in the second contingency, the appellants cannot be found at fault. The Division Bench committed an error in holding that the claim lodged by the appellant suffered from delay and laches. [Para 34][1208-A-E]
1.11 The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March, 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 20092010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years. [Para 35][1208-F-G]
1.12 The next promotion of Junior Engineers in the higher grade is to the post of Assistant Engineer. In the cadre of Assistant Engineer, there are no separate streams but only one cadre of Assistant Engineers. It is the seniority list of the cadre of Junior Engineers which would be the feeder cadre for the post of Assistant Engineers. The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and Civil streams, even though the overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of the Engineers of the Mechanical and Civil streams. The appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission. Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit. Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right. [Para 36][1208-G-H; 1209-A-C]
Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others (1991) 2 SCC 295:[1991] 1 SCR 341; Ajit Singh vs. State of Punjab (1999) 7 SCC 209:[1999] 2 Suppl. SCR 521; Major General H.M. Singh, VSM vs. UOI and Another (2014)
3 SCC 670:[2014] 1 SCR 270 – referred to.
1.13 If the seniority list is allowed to be sustained then the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go. [Para 40][1212-C-D]
1.14 The instant case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view thereof, impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal. [Para 47][1214-G-H; 1215-A-C] Ranjan Kumar and Others vs. State of Bihar and Others (2014) 16 SCC 187 – distinguished.
Prabodh Verma and others vs. State of Uttar Pradesh and others (1984) 4 SCC 251:[1985] 1 SCR 216; State of Uttaranchal vs. Madan Mohan Joshi and others (2008) 6 SCC 797:[2008] 8 SCR 591; Indu Shekhar Singh and others vs. State of U.P. and others (2006) 8 SCC 129:[2006] 1 Suppl. SCR 497; Tridip Kumar
Dingal and others vs. State of West Bengal and others (2009) 1 SCC 768:[2008] 15 SCR 194; Mukul Kumar Tyagi and Ors. vs. The State of Uttar Pradesh and Ors. (2020) 4 SCC 86:[2019] 16 SCR 1145 – referred to.
1.15 The Division Bench also dealt with an issue which was totally irrelevant and alien to the adjudication of the present appeals. In the judgment of the Division Bench there is a reference to an issue where a party takes calculated chances of participating in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. This issue was not at all relevant. The said issue does not arise in the present case. The appellants/original writ petitioners had never challenged the selection process. The challenge was only to preparation of the seniority list. [Para 48][1215-C-E]
1.16 The Division Bench in a generalized and vague manner recorded that the authorities relied upon by the Single Judge were rendered in a different fact situation and were not applicable. The Division Bench did not consider the judgments relied upon by the Single Judge but only made this passing remarks. The authorities relied upon by the Single Judge were relevant and correctly applied. [Para 49][1215-E-G]
1.17 The Division Bench proceeded to deal with the delay stating it to be 11 years, the basis for calculation of 11 years was that the seniority list of 2006 was challenged by way of amendment by the appellants in the year 2017 and therefore there was a delay of 11 years. This discussion by Division Bench also cannot be sustained. The first seniority list was prepared in 2006. It was not disclosed as to how the seniority list has been prepared by treating the three separate lists independently on their merits but not as a result of combined merit of the three lists. It was only in 2010 that the appellants came to know of the fallacy and soon thereafter they challenged the seniority list of 2010. Even if, they did not challenge the seniority list of 2006, 2010 seniority list could always be revisited, reviewed and prepared afresh, if the same was quashed. The appellants could not have been at any loss even if they had not challenged the 2006 seniority list. [Para 50][1215-G-H; 1216-A-B]
1.18 The reasoning given regarding issue of single selection is also not sustainable in view of Rules 1991 as also Rules 2009. [Para 51][1216-B-C]
1.19 The seniority inter se of direct recruits to one selection has to be one combined list based on the performance and the marks awarded in the examination prepared either by the Commission or the Committee, as the case may be. True, the Single Judge, in the operative portion mentioned that a fresh seniority list be prepared in accordance with Rule 5 and apparently did not consider the effect of Rule 8, would not vitiate the judgment inasmuch as the basis for preparation of the seniority list of direct recruits was the same in both the Rules. There is no lis inter se between direct recruits and promotees. [Para 52][1216-D-E]
1.20 The Single Judge was right in setting aside the final seniority list and directing the appointing authority for preparation of fresh seniority list in accordance with Rules 1991, be it Rule 5 or Rule 8 thereof. The impugned judgment of the Division Bench of the High Court is set aside and that of the Single Judge is maintained. [Paras 53, 54][1216-F-G]
Shiba Shankar Mohapatra vs. State of Orissa (2010)
12 SCC 471:[2009] 15 SCR 866; Dayaram Asanand
Gursahani vs. State of Maharashtra and others (1984)
3 SCC 36:[1984] 2 SCR 703; B.S. Bajwa and another vs. State of Punjab and others (1998) 2 SCC 523:[1997]
6 Suppl. SCR 451; Malcom Lawrence Cecil D’Souza vs. Union of India and others (1976) 1 SCC 599:[1975]
0 Suppl. SCR 409; R.S. Makashi and others vs. I.M. Menon and others (1982) 1 SCC 379:[1982] 2 SCR
69 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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