State of Uttarnchal & ANR. Vs. Madan Joshi & ANR.  INSC 914 (13
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3540 OF 2008 (Arising out of SLP
(C) No.12124 of 2006) State of Uttaranchal & Anr. ... Appellant Versus
Madan Mohan Joshi & Ors. ... Respondents
S.B. Sinha, J.
1. Leave granted.
2. Inter se seniority amongst the
teachers of Kumaon University is in question in this appeal which arises out of
a judgment and order dated 21.3.2006 passed by a Division Bench of the High
Court of Uttaranchal at Nainital in Writ Petition No.71 of 2004).
2 Before adverting to the
aforementioned question, we may notice the factual matrix involved in the
3. First Respondent was appointed
on an ad hoc basis as a Lecturer in Government P.G. College, Almora by the
State of Utter Pradesh through Vice-Chancellor, Kumaon University on or about
22.9.1975. The said College was declared as the Campus College of the
University. All Lecturers including the first respondent were continued and
treated on deputation with the University; the cut off date wherefor was fixed
16.8.1977. The State of Utter Pradesh framed U.P. Regularization Rules, 1979,
the relevant provisions whereof reads as under :
4.Any person who (i) was
directly appointed on ad hoc basis before 1.1.1977 and is continuing in
requisite qualification prescribed for regular appointment at the time of such
ad hoc appointment, and
completed or, as the case may be, after he has completed three years continuous
Shall be considered for regular
appointment in permanent or temporary vacancy as may be available on regular
appointment is made in such vacancy in accordance with the relevant service
rules or orders."
4. Pursuant to and in furtherance
of the said Rules, services of 355 ad hoc Lecturers were regularized. However,
the cases of nine Lecturers including the first respondent, who had been
working on deputation, were left out. It is contended that one Savita (Mohan)
Dhondiyal who had also been appointed as an ad hoc Lecturer on 17.4.1975 and,
thus, being junior to the first respondent was regularized.
5. Representations were made by
the respondents and others. The Directorate of Higher Education, Uttar Pradesh
asked the Vice- Chancellor of the University to forward the list of the said
Lecturers pursuant whereto, services of nine Lecturers including the respondent
were regularized by an order dated 11.7.1980, stating :
"The appointing authority in
exercise of powers conferred by Rule 5 of the Regularisation of Ad hoc
Employees on the posts within the jurisdiction of the U.P. Public Service
Commission Rules, 1979 issued by the Department of Personnel vide its
Notification No.19/8/75 dated 14th May, 1979, and in view of the
recommendations made by the Selection Committee constituted for regularization
of the ad hoc lecturers working in various Government Colleges under the
Directorate of Education prior to 1st January, 1977 in the pay scale of
700-1600, hereby regularizes appointments of the lecturers with effect from the
date of issuance of this order and they are being given temporarily regular 4
appointments on the posts of Lecturers w.e.f.
11th July, 1980.
However, the seniority of these
lecturers shall be according to their Serial number given in the enclosed
Annexure and they will be junior to those lecturers who have been regularized
and appointed prior to the date of regular appointment of these
6. Aggrieved by the said order,
they made a representation.
7. By an order dated 9.6.1988, the
services of the respondent were appointed with effect from 1.7.1983, it was
"Following officers of the
Government Colleges working as Lecturers in Botany Science in the pay scale of
2200-4000 are hereby appointed on probation period of two years on the same
dates with effect from the dates mentioned against their names and their
earlier services would be counted towards this probation period and they are
hereby regularized on the said post and in the same pay scale. However, their
seniority would be determined later on.
Sr. Name and designation Date of
Details of No. of Officer who has regulari- vacancies Been regularized. sed
1-20 XX XX XX
21. Shri Madan Mohan 1.7.1983
Regularised Joshi, Lecturer in on the post Botany Science w.e.f 1.7.1983 5 Vide
No.2058/15 84-11-12-46/81 Dt.
8. The State of Uttarakhand then
known as State of Uttaranchal has been curved out from the State of Uttar
Pradesh. In the seniority list, the first respondent was placed at serial
number 137 whereas Mrs. Savita (Mohan) Dhondyal was placed at serial No.102.
Objections were filed to the said seniority list wherefor recommendations were
made by the Directorate of Higher Education in the following terms :
"Dr. Joshi was appointed on
ad hoc basis and pursuant to his appointment he joined Almora College on 22nd
September, 1975. Later on his services were approved by the Director of
Education (Higher Education), Uttar Pradesh, Allahabad on 27th March, 1976 with
effect from the date of his joining the post. His name in the seniority list
would have been mentioned at Sr.
No.102 after the name of Smt.
Deveshwari Bisht on the basis of his order of first appointment. But it would
have been possible if his name would have been considered in the order of
regularization dated 22nd May, 1980. It appears that his name was not included
in the said order dated 22nd May, 1980 although Shri Joshi was fully eligible
for being considered in the said order dated 22nd May, 1980 according to the
Regularisation Rules of 1979. Therefore, if the Government so wishes, his order
of regularization dated 11th July, 1980 should be amended to the above
9. A writ petition was filed by
the first respondent before the High Court of Uttaranchal at Nainital which by
reason of the impugned judgment has been allowed.
10. Mr. Gopal Subramanium, learned
Additional Solicitor General appearing on behalf of the State, would submit
that the High Court committed a serious error insofar as it failed to take into
consideration that the State Uttaranchal, having framed the Uttaranchal Higher
Education (Group A) Service Rules, was bound by the provisions thereof and in
that view of the matter, the High Court committed a serious error insofar as it
failed to take into consideration the effect of the statutory rules governing
the field in their proper perspectives.
11. Mr. Garg, learned counsel
appearing on behalf of the respondent, on the other hand, would contend that as
the instant case is governed by the Rules which were applicable prior to coming
into force of 2003 Rules, the High Court has not committed any illegality or
the impugned judgment is unassailable.
12. It was contended that in the
writ petition it was not necessary for the first respondent even to implead the
said Savita (Mohan) Dhondyal 7 and others as party respondents, as no relief
had been claimed against them. Reliance has been placed on A. Janardhana v.
Union of India &
Ors. [(1983) 3 SCC 601].
13. Services of the first
respondent as also several others including Savita (Mohan) Dhondyal, as noticed
herein before were regularized in terms of the provisions of the U.P.
Indisputably, services of those
whose names appear above the first respondent, services of those were regularized
w.e.f 22.5.1980 whereas that of the first respondent was regularized from
11.7.1980. The order dated 11.7.1980 categorically stated :
"Under Rule 4(3) of Uttar
Pradesh Regularisation of Ad hoc Appointment within the purview of Public
Service Commission Rules 1979 framed vide notification No.19/8/75 (1) dated
14-5-1979 by the Personnel Department, on the recommendation of the Selection
Committee constituted for regularization of Lecturers appointed on ad hoc basis
in the pay scale of Rs.700-1600 prior to 1-1-1977 in the U.P.
Government Inter Colleges under
the Directorate of Higher Education and in exercise of powers under Rule 5 of
the aforesaid Rules the competent authority is pleased to regularize ad hoc
appointment of Lecturers mentioned in the Schedule-1 w.e.f. the date of
issuance of this order and they are given regular temporary appointment on the
post of Lecturer w.e.f.
8 The seniority of these Lecturers
will be as per the serial given in the schedule and they will be junior to the
regularly selected Lecturers who have been appointed prior to the regular
appointment of these Lecturers."
The said direction has not been
set aside by the High Court.
Validity thereof may be in
question in the writ petition.
14. The question as to which Rule
would govern the inter se seniority amongst the parties has not been
determined. Rule was framed by the State of Uttaranchal in 2003 in terms of the
proviso appended to Article 309 of the Constitution of India.
Rule 3(k) defines `substantive
appointment' to mean an appointment, not being an ad hoc appointment, on a post
in the cadre of the Service made after selection in accordance with the rules
and if there are no rules in accordance with the procedure prescribed for the
time being by executive instruction issued by the Government.
15. Rule 20 of the said Rules lays
down the mode of determining seniority in the following terms :
"20. Seniority :
(1) Except as hereinafter
provided, the seniority of persons in any category of posts 9 shall be
determined from the date of the order of substantive appointment and if two or
more persons are appointed together by the order in that case it will mean the
date of issue of order :
appointment order specified a particular back date with effect from which a
person is appointed, substantively, that date will be deemed to be the date of
order of substantive appointment and in other cases it will mean the date of
issue of the order;
than one order of appointment are issued in respect of any one selection, the
seniority shall be as mentioned in the combined order of appointment issued
under sub-rule (2) of rule 17.
(2) The seniority inter se of
persons appointed directly on the result of any one selection shall be the same
as determined by the Commission :
Provided that a candidate
recruited directly may lose his seniority if he fails to join without valid
reasons when the post is offered to him. The decision of the Appointing
Authority as to the validity of reasons shall be final.
(3) The seniority inter-se of
persons appointed by promotion shall be the same as it was in the cadre from
which they were promoted."
The said Rule also contains a
power of relaxation being Rule 25 which is to the following effect :
10 "25. Relaxation of the
Conditions of service :
Where the State Government is
satisfied that the operation of any rule regulating the conditions of Service
of a person appointed to the Service causes undue hardship in any particular
case, it may notwithstanding any thing contained in the rules applicable to the
case, by order dispense with or relax the requirements of that rule to such
extent and subject to such conditions, as it may consider necessary, for
dealing with the case in a just and equitable manner :
Provided that where a rule has
been framed in consultation with the Commission that body shall be consulted
before the requirements of the rule are dispensed with or relaxed."
16. The question as to whether the
said Rules will have retrospective effect or in any event will govern the cases
of the parties, thus, was required to be determined by the High Court.
17. The High Court, in its
impugned judgment, proceeded on the basis as to what would constitute a
substantive appointment. The decisions of this Court, whereupon strong reliance
has been placed by the High Court in arriving at its conclusion may not be of
much significance but what is significant is that in the writ petition even
Savita (Mohan) Dhondyal and others who lose their seniority in the event writ
petition was to be allowed, were not impleaded as parties. They, in our
opinion, should 11 have been impleaded as parties in the writ application.
Savita (Mohan) Dhondyal and others, if the writ petition is allowed, would
suffer civil consequences. Inter se seniority may not be a fundamental right,
but is a civil right. [See State of UP & Anr. v. Dinkar Sinha [2007 (7)
SCALE 8]. The respective rights of seniority of the parties, thus, required
determination in their presence.
18. A Three Judge Bench of Court
in Prabodh Verma & Ors. v. State of Uttar Pradesh & Ors. [AIR 1985 SC
167], stated the law as under :
"A High Court ought not to
decide a writ petition under Article 226 of the Constitution without the
persons who would be vitally affected by its judgment being before it as
respondents or at least by some of them being before it as respondents in a
representative capacity if their number is too large, and, therefore, the
Allahabad High Court ought not to have proceeded to hear and dispose of the
Sangh's writ petition without insisting upon the reserve pool teachers being
made respondents to that writ petition, or at least some of them being made
respondents in a representative capacity, and had the petitioners refused to do
so, ought to have dismissed that petition for non-joinder of necessary
19. Reliance placed on A.
Janardhana (supra) by Mr. Garg, in our opinion, is misplaced. Therein, no
relief was claimed against any 12 individual. The only relief which was claimed
therein was against the Union of India. The question which was raised therein
was a question of interpretation. It was in the aforementioned situation, this
Court held that all the employees were not required to be impleaded as a party.
In that case, the case of direct recruits has not gone unrepresented. It was
"In this case, appellant does
not claim seniority over any particular individual in the background of any
particular fact controverted by that person against whom the claim is made.
The contention is that criteria
adopted by the Union Government in drawing up the impugned seniority list are
invalid and illegal and the relief is claimed against the Union Government
restraining it from upsetting or quashing the already drawn up valid list and
for quashing the impugned seniority list. Thus, the relief is claimed against
the Union Government and not against any particular individual. In this
background, we consider it unnecessary to have all direct recruits to be
impleaded as respondent."
20. For the reasons
aforementioned, we are of the opinion that the interest of justice would be
subserved if the impugned judgment is set aside and the matter is remitted to
the High Court for consideration of the matter afresh. In the writ petition,
the first respondent may file an appropriate application for impleading Savita
(Mohan) Dhondyal and 13 others as parties and/or some teachers in their
The High Court is requested to
allow the said application for impleadment and determine the matter in
accordance with law as expeditiously as possible, preferably within the period
of 8 weeks of the communication of this Order.
21. The appeal is disposed of