Vs. State of U.P. & Anr  INSC 167 (18 March 1998)
A.P. Misra K. Venkataswami, J.
appellant, feeling aggrieved by the promotion given to the second respondent
herein as chief Town planner.
Bareilly, as per the order dated 6/7. 7.92,
moved the Allahabad High Court, Lucknow Bench, with a prayer for the issue of
Writ of Certiorari to quash the selection of the second respondent as Chief
Town Planner (Mukhya Nagar Niyojak) and also for the issue of Writ of Mandamus
directing the first respondent to consider his case for the post of Chief town
Planner and to promote him to the said post with consequential benefits.
facts leading to the filing of the Writ Petition No. 3849/92 before the High
Court are the following:- On the coming into force of the U.P. Urban Planning
and Development Act, 1973, the Development Authorities' were constituted for
the declared development areas. One such Development Authority constituted in
September, 1974 was the Lucknow Development Authority. The said Authority had
the power to appoint officers and employees for the performance of functions
entrusted to it under Section 5(2) of the 1973 Act. A proposal for creation of
certain posts in the planning Section of the Lucknow Development Authority was
moved for consideration on 3.3.76. Pursuant to that, in the meeting held on
15.10.76. Pursuant to that, in the meeting held on 15.10.76, the Vice Chairman
of the Lucknow Development Authority Intimated about the creation of posts in the
planning Section inter alia Assistant Architect and Executive Officer (RBO). By
a letter of appointment dated 29.12.76, the appellant was appointed on the post
of Assistant Architect in the pay scale of 55.-1200, which was revised by the
pay Commission to 850-1200, w.e.f. 1.7.79.
appellant joined the service as Assistant Architect on 7.2.77. Subsequently,
the appellant was promoted on ad hoc basis as Executive officer (RBO) on 7.2.83
in the pay scale of 800-1450, which was subsequently revised as 1250-2050 with
effect from a date prior to 7.2.83. However, the appellant was reverted to the
original post of Assistant Architect by an order dated 2.4.83. This order of
reversion was challenged by the appellant before the Lucknow Bench of the Allahabad
High court in Writ Petition No. 1929/83 on 14.4.83. The High Court finally
heard and disposed of the Writ petition on 22.7.87 accepting the case of the
appellant and consequently quashing the order of reversion and directing
Authorities to restore the appellant to the post of Executive Officer (RBO)
with all consequential benefits.
meanwhile, the 1973 Act was amended on 22.10.84 by inserting Section 5-A, which
enabled the creation of 'Development Authorities Centralised Services'. Later
on, the U.P. Development Authorities Centralised Services Rules, 1985 were
framed under Section 5-A read with section 55 of 1973 Act. These Rules came
into force on and from 25.6.85.
to Rule 3, certain posts in the cadre of service of 'Town Planning and
Architectural' were enumerated. for our purpose, the following four posts need
Nagar Niyojak 1780-2300
Nagar Niyojak 850-1720
contemplated under the Centralised Services Rules, the appellant was absorbed
as Assistant Town Planner/Assistant Architect which post the appellant was
holding when he was reverted in the pay scale of 850-1720 by an order dated
14.5.87. This order of absorption was passed when the matter was pending before
the Allahabad High Court, which was disposed of only on 22.7.87, as noticed
above, allowing the appellant's case. The judgment of the Allahabad High Court
was given effect to by the Authorities by making an entry in the service Book
of the appellant on 13.6.1991 to the effect that the appellant stood promoted
to the post of Architect w.e.f. 7.2.83 in the pay scale of Rs.1250-2050.
supplied) However, the Authorities, without noticing the judgment dated 22.7.87
of the Allahabad High Court, gave promotion to the appellant to the post of
Town Planner on 29.7.87 in the pay scale of 1250-2050. it must be noted that as
per the Allahabad High Court judgment, which was given effect to subsequently
on 13.6.91, for the appellant was holding the post of Architect in the pay
scale of 1250-2050 w.e.f. 7.2.83.
against the above history of the appellant, let us now look into the service
record of the second respondent.
second respondent was appointed as Architect, equivalent to Assistant Town
Planner, on 29.10.76 in the pay scale of 850-1720. However, the second
respondent was promoted as Senior Architect in the pay scale of 1250-2050 only
on 16.5.84, whereas the appellant was promoted as Executive officer (RBO) in
the pay scale of 1250-2050 w.e.f. 7.2.83, i.e., much earlier to the promotion
of the second respondent to the post of Senior Architect in the pay scale of
1250- 2050. Further promotion will be to the post of Chief town Planner. For this, the second respondent was preferred and
given appointment on 6.7.1992. Hence, the appellant moved the Allahabad High
Court, Lucknow Bench, for the relief mentioned above by filing W.P. 3849/92.
High Court was of the view that the post of Executive Officer (RBO) held by the
appellant was not a cadre post in the Centralised Services Rules and he was
absorbed in a lower grade when the second respondent was holding a post in the
higher grade. Even though, the High Court noticed the judgment allowing the
writ Petition No. 1929/83 and which enabled the appellant to draw salary in the
pay scale of 1250-2050 from 7.2.83, held that he was promoted in the pay scale
of 1250-2050 only on 13.6.91 when the entry was made on that date in the
Service Book of the appellant. The High Court herein again failed to notice
that the entry made on 13.6.91 expressly gave effect to the promotional order w.e.f.
7.2.83. Ultimately, the High Court dismissed the Writ Petition of the
by the decision of the High Court, the present appeal by special leave has been
preferred by the appellant.
counsel appearing for the appellant elaborately argued the case of the
appellant by bringing to our notice, in detail, the facts as well as the
to the learned counsel, the criteria for determining the seniority between the
appellant and the second respondent must be on the basis of Rule 7 of the U.P.
Authorities Centralised Services Rules, 1985 and not on the basis of Rule 6 of
the U.P. Government Servants Seniority Rules, 1991 or Rule 28 of the Centralised
Services Rules. According to the learned Counsel, Rule 7 of the Centralised
Services rules is a special one which excludes all other general rules. In this
connection he placed reliance on the well-known Latin Maxim: 'generalia specialibus
non derogant'. In substance that maxim means the special excludes the general.
According to the learned counsel, Rule 7 of the Centralised Services Rules
being special one excludes Rule 6 of the U.P. Government Servants seniority
rules a general one. In support of that, he placed reliance on a judgment of
the Constitution Bench in [(1990) 4 SCC 406]. He also contended that the scope
of Rule 3 of the Centralised Services Rules had not been properly interpreted
by the High Court when it held that in the absence of express enumeration of
the post of Executive Officer (RBO) in the Centralised Services Rules, the
appellant cannot claim the services rendered in that post notwithstanding the
scale of pay drawn by him for the purpose of further promotion. A proper
reading of Rule 3, read with the Note-1 and also Rule 7, will clearly indicate,
according to the counsel, that the post held in various Development Authorities
with different nomenclature will have to be co-related to the post enumerated
under the Centralised Services rules with reference to the scale of pay
attached to the particular post and not on the basis of
enumeration/nomenclature in the Centralised Services 'rules.
the learned counsel contended that the high Court has made certain factual
errors, which led to the judgment being rendered against the appellant. For
instance, the High Court made a mistake in thinking that the appellant was
promoted to the post of Town Planner only on 13.6.91 whereas factually he was
promoted to the post of executive Officer (RBO), which is the post equivalent
in the cadre of Town Planner, on and from 7.2.83. Similarly, the High Court
also went wrong in mentioning that the appellant was promoted in the pay scale
of 570-1100 when his original appointment itself was in the pay scale of
850-1720. In the light of these submissions, learned counsel submitted that the
judgment of the High Court is liable to be set aside and the reliefs sought by
the appellant should be granted.
counsel appearing for the respondents, contending contra, submitted that the
interpretation of the High court on Rule 3, read with Note-1 under Rule 3 and
also Rule 7 of the Centralised Services Rules, was the correct one and so far
as the position of seniority is concerned, it must be reckoned on the basis of
Rule 6 of the U.P. Government Servants Seniority Rules, 1991 and not on the
basis of Rule 7 of the Centralised Services Rules. Rules 28 and 37 of the Centralised
Services Rules also, according to the learned counsel, support the view taken
by the High Court. Learned counsel for the respondents, therefore, submitted
that the judgment of the High Court does not call for any interference.
facts regarding the dates of appointment and promotion, there is not controversy.
have considered the rival submission. As noticed earlier, the facts are not in
dispute, in particular, the fact that the appellant was promoted as Executive
officer (RBO) on 7.2.83 in the pay scale of 1250-2050, cannot be disputed in
the light of the judgment of the High Court in Writ Petition No. 1929/83. It is
also an admitted fact that the initial appointment of the second respondent was
earlier to that of the appellant. However, while the appellant was promoted to
a post in the pay scale of 1250-2050, the second respondent was promoted to an
analogous post in the same pay scale only on 16.5.84 . In that situation, how
the seniority between the two has to be settled is the only question before us.
For deciding this, it is necessary to set out the relevant portion of the
Rules. They are as follows:- Rule 3 of the U.P. Development Authorities Centralise
Services Rules, 1985:
II - CADRE AND STRENGTH
3(1) There shall be the following categories of the posts in the cadre of the
services and they shall consist of the post mentioned against them:-
------------------------------------------------------------ Service Posts
included in the Scales of Pay service In Rs.------------------------------------------------------------
1 2 3 ------------------------------------------------------------ I. to III Omitted IV. Town planning
Nagar Niyojak 1780-2300 & Architectural
Nagar Niyojak 850-1720
Assistant 570- 1100
10 Omitted VI. to VIII Omitted
- The under noted posts, as specified above, shall include the post or posts
mentioned against them as also the posts carrying identical scales of pay in
the same or equivalent cadre. (Emphasis Supplied) Post Post(s) included (1) to
(8) Omitted 9. Mukhya Nagar Niyojak Vastuvid Niyojak (10) Sahayak Nagar Niyojak
Vastuvid (Rs. 850-1720)/ Sahayak Vastuvid/Land Scape Vastuvid/Vastuvid Niyojak/Research
Officer. (11) to (22) Omitted Note: (2) The post or posts specified above but
not existing in any Development Authority on the date of enforcement of these
rules, shall not mean to have been created or come into existence by virtue of
the provisions of this rule." "Rule 7 (1) Notwithstanding anything in
anything in rule 28 the seniority of such officers and other employees who are
finally absorbed in the service under sub-section (2) of section 5-A of the Act
shall be determined on the criterion of continuous length of service including
the services rended in a Development authority, Nagar Mahapalika, Nagarpalika
or Improvement Trust on similar posts." Rule 28(1) : Except as hereinafter
provided, the seniority of persons in any category of post, shall be determined
from the date of order of appointment and if two or more persons are appointed
together, by the order in which their names are arranged in the appointment
that if more 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 (3) of rule 25.
28 (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.
37(2): In regard to the matters not covered by these rules or by special
orders, the members of service shall be governed by the rules, regulations and
orders applicable generally to U.P. Government servants serving in connection
wit the affairs of the State.
Rules of the U.P. Government Servants seniority rules 1991 - Rule 2: - These
rules shall apply to all Government servants in respect of whose recruitment
and conditions of Service, rules may be or have been made by the governor under
the proviso to Article 309 of the Constitution.
3: These rule shall have effect notwithstanding anything to the contrary
contained in any other service rules made here to before.
4: In these rules unless there is anything repugnant in the subject or context,
the expression - (f): "Service" means the service in which the
seniority of the member of the service has to be determined;
"service rules" means the rules made under the proviso to Article 309
of the Constitution, and where there ar no such rules, the executive
instructions issued by the Government regulating the recruitment and conditions
of service of persons appointed to the relevant service;
6: Where according to the service rules, appointments are to be made only by
promotion from a single feeding cadre, the seniority inter se of persons so
appointed shall be the same as it was in the feeding cadre." Undoubtedly,
on a persual of the judgment of the High Court , we are convinced that the High
Court has committed certain factual and legal errors. None the less, in our
view, the conclusion reached by the High Court has to be sustained for the
reasons, which are given below.
Rule 2, the U.P. Government Servants Seniority Rules, 1991 apply to all
government servants in respect of whose recruitment and conditions of service
rules are made or to be made by the Governor under the proviso to Article 309
of the Constitution. Rule 4 (f)) defines "service" to mean the
service in which the seniority of the member of the service has to be determined.
"Service rules" are defined in Rule 4(g) to mean the rules made under
the proviso to Article 309 of the Constitution, and where there are no such
rules, the executive instructions issued by the Government, regulating the
recruitment and conditions of service of persons appointed, to the relevant
service. The more important rule, namely, Rule 3 reads as follows:- "These
rules shall have effect notwithstanding anything to the contrary contained in
any other service rules made heretobefore." We have already extracted Rule
6 of these Rules, which relates to seniority where the appointments by
promotion only from a single feeding cadre. But for Rule 3 above mentioned, we
would have accepted the contentions of learned counsel for the appellant and
upset the judgment of the High Court. Rule 3, in our view, overrides all other
rules made earlier in other services in the State, whereas Rule 7 of t he Centralised
Services Rules has the overriding effect against Rule 28 of those Rules only.
Further, the title of 1991 Rules clearly suggests that the seniority among the
Government servant in U.P. Government Servants Seniority Rules, 1991 cannot be
ignored as it has overriding effect on Rule 7 of the Centralised Services
Rules. The decision relied on by the learned counsel for the appellant, no
doubt, has laid down the law in para 50 of the Ashoka Marketing Ltd. case
(supra), which is as follows:- "One such principle of statutory
interpretation which is applied is contained in the latin maxim: leges
posteriors prioress conterarias abrogant (later laws abrogate earlier contrary
laws). This principle is subject to the exception embodied in the maxim:
specialibus non derogant (a general provision does not derogate from a special
one). This means that where the literal meaning of the general enactment covers
a situation of which specific provision is made by another enactment contained
in the earlier Act, it is presumed that the situation was intended to continue
to be dealt with by the specific provision rather than later general one (Bennion,
Statutory Interpretation pp. 433- 34)." We do not think that the ratio
laid down in the above mentioned judgment can be applied to the facts of this
case as the U.P. Government Servant Seniority Rules prevail for the purpose of
deciding seniority over Rule 7 of the centralised Services Rules. Learned
counsel also cited Natural Gas Commission & Ors. [(1997) 10 SCC 616] to
support the claim of the appellant that in any event if a junior employee
(meaning thereby the second respondent) is given promotion without considering
his senior (meaning thereby the appellant), the senior employee can claim the
right to be considered for such promotion from the date the junior was
promoted. We do no think that we need go into this question as on facts and
applying the Rule 6 of the U.P.
Servants Seniority Rules, the second respondent must be deemed to be senior in
view of the admitted fact that he entered into the service (feeding cadre) much
earlier to that of the appellant. We, however make it clear that if the
appellant has earned his right for promotion dehors claiming seniority over the
second respondent, that right should be decided independently without reference
to this judgment. If Rule 6 of the U.P. Government Servants Seniority Rules is
applied, the appellant is junior to the second respondent in the cadre of Town
planner cannot be disputed. if so, further promotion given to the second
respondent as Chief Town Planner cannot be faulted.
result, the appeal is dismissed and the order of the High Court is sustained
though for different reasons.
will be no order as to costs.