Service Law:
Seniority – Determination of – Of the employees of a statutory body – Different appointment letters issued to different categories i.e. General, OBC, SC and ST at different time – Date of appointment of appellants (candidates higher in merit list) was later than the date of appointment of respondents (candidates who were lower in the merit list) – Later seniority list declared on the basis of the merit list – Seniority list was challenged before the Tribunal taking the plea that the list should be as per the date of appointment and not merit list – Application dismissed – In writ petition High Court held that seniority in terms of Regulation 23 has to be determined from the date of appointment – Appeal to Supreme Court – Held: Regulation 20 mandates that appointments have to be made, in order in which the candidates stand in the list prepared under Regulations 16(2), 17 or 18 – Regulation 23 has to be read in terms of Regulation 20 – Therefore, irrespective of date of appointment, the seniority has to be fixed as per the merit of the candidate – The seniority has also not been framed keeping in view the Government Order dated 31st August, 2001 as mandated to be followed by Regulation 6 – Seniority also could not have been fixed as per Uttarakhand Government Servant Seniority Service Rules, 2002 – Such Rules since were framed under proviso to Art. 309 of the Constitution, are not applicable to a statutory body unless adopted by such body – Uttar Pradesh Jal Board Subordinate Engineering Service Regulations, 1978 – Regulations 6,16(2),17,18,20 and 23 – Uttarakhand Government Servant Seniority Service Rules, 2002 – r. 5.
Disposing the appeals, the Court
HELD: 1. The admitted facts are that the appellants are higher in merit than the writ petitioners before the High Court but the writ petitioners were appointed earlier in point of time than the appellants who came to be appointed subsequently by the unique method of appointment resorted to by the Nigam. It is also an admitted fact that the result was declared by the Nigam of each category i.e. General, OBC, SC, ST as per their own merit. [Paras 9 and 10] [768-C; 769-F]
2.Regulation 20 of the Uttar Pardesh Jal Board Subordinate Engineering Service Regulations, 1978 mandates the appointing authority to make the appointments from amongst the candidates in order in which they stand in the list prepared under Regulations 16(2), 17 or 18. Any appointment made by the employer, in contravention of the statutory Regulations cannot defeat the rights of the appellants only because they have not challenged the appointment of their juniors at an earlier point of time. Regulation 23 provides that seniority of persons appointed in any branch of service shall be made as per substantive appointment. The appointment in Regulation 23 has to be read in terms of Regulation 20 mandating the manner of appointment. Therefore, irrespective of the date of appointment, the seniority has to be fixed as per the merit of the candidates determined by the Selection Committee. [Para 17] [771-H; 772A-B]
3. However, Regulation 6 itself contemplated that reservation of candidates belonging to SC, ST, Backward Classes and the candidates of other categories shall be in accordance with the orders of the Government in force at the time of recruitment. In terms of such Regulations, the Government order dated 31st August, 2001 becomes applicable to determine the extent of reservation which includes the method of determining seniority as well. Apart from the statutory Regulation 6, even the approval of the State Government to fill up 88 posts specifically mentions that the reservation shall be made as per the 100 points roster as prescribed in the Circular dated 31st August, 2001. Admittedly, the seniority has not been framed keeping in view the roster circulated on 31st August, 2001. [Para 18] [772-C-E]
4. The seniority cannot be fixed as per Rule 5 of the Uttarakhand Government Servant Seniority Service Rules, 2002. Such Rules were not adopted to be applicable to the Nigam. The Rules were approved by the Board of the Nigam on 24th September, 2007 proposing that the provision shall be made in the proposed service regulations but the Rules were made applicable in the year 2011 only. Such Rules have been framed under the proviso to Article 309 of the Constitution and they are not applicable to a creation under a Statute. These Rules are applicable to government servants in respect of whose recruitment and condition of service Rules may be or have been made by the Government under the proviso to Article 309 of the Constitution. Since the employees of the Nigam are not government servants nor are their service conditions governed by Rules framed under the proviso to Article 309 of the Constitution, therefore, such Rules unless adopted by the Nigam cannot be extended to the employees of the Nigam. [Para 19] [772-E-H; 773-A]
5. Therefore, the order of the High Court and that of the Tribunal are not sustainable in law as the seniority list has not been prepared in accordance with the roster circulated on 31st August, 2001 which is required to be mandatorily followed in terms of Regulation 6 as well with the approval of the State Government dated 3rd May, 2005 to fill up 88 posts. [Para 20] [773-B]
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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