U.P. Jal
Nigam & Ors Vs. Durga Prasad Singh & Ors [1994] INSC 631 (2 December 1994)
Ramaswamy,
K. Ramaswamy, K. Venkatachala N. (J)
CITATION:
1995 SCC Supl. (1) 440 JT 1995 (2) 348 1994 SCALE (5)254
ACT:
HEAD NOTE:
ORDER
1.
Leave granted in SLPs -No.8106 and 8264 of 1994.
2.
These appeals by special leave arise from the judgments of the Division Bench
of the High Court of Allahabad in W.P.No.72(SB)/94 and 114(SB)/94 dated
18.3.93. The facts are that the respondents were temporarily appointed on adhoc
basis as Assistant Engineers in U.P. Local Self Govt. Engineering Department.
On an earlier occasion, when writ petition was filed, the High Court
adjudicated the dispute and had observed in its order dated January 14, 1993, in W.P.No.8504/87 at paragraphs 17
and 18 thereof thus :
"It
follows from the conclusions arrived at above that the Jal Nigam must publish
the merit list prepared by the Selection Committee and take necessary action
for determining seniority according to that list. The merit list could not be
produced by the Jal Nigam before the Tribunal. 'Mere are three alternatives. First
that the original merit list is traced out by the Jal Nigam and is acted upon
after considering objections, if any, which may be jade against the same by the
concerned Assistant Engineers. The second alternative is that if the original
merit list is not traceable, an attempt is made to reconstruct and publish the
same and after inviting objections thereto from the concerned Assistant
Engineers and disposing of the objections action is taken according to law.
The
third alternative is that the copy of the merit list reduced by the claimants
before the Tribunal is taken into account for determining seniority provided
the genuineness of the merit list is accepted by all the persons affected by it
after opportunity for the same is given to them by the Jal Nigam in this
behalf. In case none of these alternatives is feasible, there can no other
court left open for the Jal Nigam except to constitute a fresh selection
committee under the relevant rules for the purposes of drawing a fresh merit
list of the parties concerned on the basis 349 of their performance as
indicated by the available records upto December 26, 1977. The whole exercise must be
completed within a period of two months.
After
hearing the learned counsel for the parties at great length, I have come to the
conclusion that the writ petition deserves to be allowed. The writ petition is
accordingly allowed and the impugned judgment and order of the U.P.Public Services
Tribunal dated 1.7.87 is hereby quashed. The impugned seniority list dated
26.12.1977 is also quashed. It is directed that the U.P. Jal Nigam shall draw a
fresh seniority list in accordance with, the relevant service rules which were
in force on 26.12.1977. The fresh seniority list shall be drawn within a period
of two months from the date on which a copy of this order/judgrnent is produced
before the competent authority.
In
drawing the seniority list, the U.P. Jal Nigam shall take into account the merit
list alleged to have been prepared by the claiment before the aforesaid
Tribunal provided the genuineness of the merit list is accepted by all the
persons affected by it after opportu- nity for the same is given to them by the
Jal Nigam in this behalf In case the genuineness of the merit list is not
accepted by the parties then it will be open to the Jai Nigam to constitute a
fresh Selection Committee as required under the relevant rules for the
purposes. Of determining the merit of the parties concerned, the fresh
seniority list shall be finally prepared after giving an opportunity to the
parties concerned to show cause against the same. In any case the whole
exercise must be completed within a period of two months as already indicated. Parties
to bear their own cost. Reasons will follow.
3.
Since the record has not been traced out and the officers who dealt with the
matter at the relevant point of time though were contacted, could not assist
the U.P. Jal Nigam in tracing the record, they lodged the F.I.R. with the
police to investigate into the persons responsible for the destruction of the
record. Consequently, the last option given by the High Court in the said order
viz. constitution of the fresh Selection Committee was resorted to and a
Committee was accordingly constituted. The legality of the constitution of the
committee, when came to be challenged in the writ petitions, by the impugned
order of the Division Bench made in them, it is observed:
"We
do not intend to go into detail as to whether the three alternatives as
provided in the directions contained in paragraph 17 of the judgment were
strictly followed and if not followed then for valid reasons or not; we proceed
to examine the scope of the present selection committee which has been ultimately
constituted by the U.P. Jal Nigam. We are doing so specially for the reason
that the matter relating to determination of seniority of the Assistant
Engineers has been hanging fire for about two decade now and the promotion of
certain Assistant Engineers on the basis of the impugned seniority list of
December, 1977 are also in jeopardy.
Therefore,
assuming that the authorities could neither trace the previous merit list nor
was consensus on the genuineness of the seniority list produced by some of the
Assistant Engineers before the Public Service Tribunal, the only way out left
for the authorities was to constitute a fresh selection committee under the
relevant rules which they have done but then it appears that the authorities
have ignored the rider that this merit list has only to be reconstituted on the
basis of their performance as indicated by the available record upto December
1977 and no new material could be added. It has nowhere been stated by the Jal Nigam
either in the 350 counter affidavit or during the course of the arguments that
since records of the concerned Assistant Engineers who had participated in the
selection committee of March 1976 as produced before the selection committee
are not available today. In these circumstances, the authorities have clearly
acted contrary to the directions issued by this Court by attempting to hold
fresh interview and assess the Assistant Engineers on the basis of their
present performance.
4.
Accordingly, a mandamus has been issued directing the appellant to re-do the
merit list of only of such Assistant Engineers whose services were regularised
by the selection committee constituted in March, 1986, on the basis of their
performance as indicated by the available records upto December 26, 1977. This
order is now under challenge.
5. The
facts stated, would clearly indicate that the record relating to the relevant
period has been destroyed and the admission in the affidavit filed by the
respondent in an interim application itself clearly indicates that the fresh
selection list was only a tentative list not made even by the Department but by
some others. In the interim application, the actual averment has been made at
page 37 thus:- "That only by a notice dated 23.8.1993, the U.P. Jal Nigam
had circulated the partial merit list filed by the claimants in the U.P.
Public
Services Tribunal and invited objections.
6. It
is clear that a merit list filed, had obviously been made by some of the
parties and produced before the Tribunal and when it was circulated the adversely
affected persons had objected to that a merit list, as well as its genuineness.
In consequence, the list was ignored and a committee came to be appointed. The
appellants have also specifically stated in the counter affidavit filed in the
High Court that after investigation to dig out the record, they could not trace
out the record and so they lodged an F.I.R. for investigation as to the persons
responsible for destruction of the record and the matter is under in- vestigation.
Under these circumstances, the appellants obviously had chosen the last option
given by the High Court in the earlier order and constituted a fresh selection
committee to consider the claims of the candidates for preparation of the inter
se seniority in the order of merit.
Under these
circumstances, the High Court was not right in issuing the writ of mandamus
pointed above.
7. The
appeal is accordingly allowed. It is needless to mention that the committee
would go into the question of inter-se seniority and prepare the list according
to merit and give the report within a period of two months from the date of the
receipt of this order. It is again needless to mention that the police would
make a thorough investigation into the persons responsible for destruction of
the record and take appropriate action according to law. The writ petitions
stand dismissed.
S.L.P.
NO.9364/94 :- The petition is dismissed as withdrawn.
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