D.R. Yadav
& Anr Vs. R.K. Singh & Anr [2003] Insc 299 (18 July 2003)
Cji.
& S.B. Sinha.
(Arising
out of S.L.P. (Civil) No.19788-19789/2002) S.B. SINHA, J :
Leave
granted.
Dispute
of inter se seniority between the appellants and the respondent No. 1 is in
question in this appeal which arises out of a judgment and order dated
23.5.2002 passed by a Division Bench of the High Court of Judicature at Allahabad,
Lucknow Bench in Writ Petition No. 1780(S/B) of 2000 and Writ Petition No.
195(S/B) of 2001.
FACTUAL
MATRIX:
The
Legislature of the State of U.P. enacted
U.P. Urban Planning & Development Act, 1973 (hereinafter referred as '1973
Act'). The said Act was enacted to provide for the development of certain areas
of Uttar Pradesh according to the plan and for matters connected therewith and
ancillary thereto.
By
reason of Section 4 of the said Act an Authority to be called the Development
Authority for any development area was constituted. Section 5 deals with the
staff of the said authority. Sub-section (2) of Section 5 of 1973 Act
contemplates that subject to such control and restrictions as may be determined
by general or special orders of the State Government, the authority may appoint
such number of other officers and employees as may be necessary for the
efficient performance of its functioning. The reason for the said enactment
inter alia is stated to be:
"In
the developing areas of the State of Uttar Pradesh the problems of town planning and Urban development need to
be tackled resolutely. The existing local bodies and other authorities in spite
of their best efforts have not been able to cope with these problems to the
desired extent. In order to bring about improvement in this situation, the
State Government considered it advisable that in such developing areas,
Development Authorities patterned on the Delhi Development Authority be
established. As the State Government was of the view that the Urban development
and planning work in the State had already been delayed it was felt necessary
to provide for early establishment of such authorities." By reason of the
provisions of the said Act, thus, other statutes governing the field relating
to town planning and urban development remained suspended in terms of
Sub-section (1) of Section 59 of the Act.
Sub-Section
(3) of Section 59 reads as under:
"On
and from the constitution of the Development Authority in relation to a
development area which includes the whole of a city as defined in the Uttar
Pradesh Municipal Corporations Act, 1959, all posts borne on the establishment
of the Municipal Corporation of that city exclusively in connection with its
activities under Chapter XIV of the said Adhiniyam or under the Uttar Pradesh
(Regulation of Building Operations) Act, 1958, immediately before the date of
the constitution of the Development Authority, not being a post governed by the
Uttar Pradesh Palika (Centralized) Services Rules, 1956 (hereinafter in this
section referred to as the Centralized Services), shall, on and from such date,
stand transferred to the Development Authority with such designations as the
Authority may determine and officers and other employees who are not members of
any Centralised Services, serving under the Municipal Corporation of that city
not exceeding the number of posts so transferred shall be selected in
accordance with such directions as may be issued by the State Government for
being appointed on the said posts and on such selection shall stand transferred
to and become officers and other employees of the Development Authority and
shall as such hold office by the same tenure, at the same remuneration and on
the same terms and conditions of service as they would have held the same if
the Authority had not been constituted, and shall continue to do so unless and
until such tenure, remuneration and terms and conditions are duly altered by
the Authority.
Provided
that any service rendered under the Municipal Corporation by any such officer
or other employee before the constitution of the Authority shall be deemed to
be service rendered under the Authority.
Provided
further that the Authority may employ any such officer or other employee in the
discharge of such functions under this Act as it may think proper, and every
such officer or other employee shall discharge those functions accordingly."
In terms of Section 4 of the said Act, Lucknow Development Authority was
constituted on 13.09.1974 whereupon all posts borne on the development wing of
the other local bodies like Nagar Mahapalika or Municipal Corporation etc.
stood transferred thereto.
Pursuant
to or in furtherance of applications having been invited to fill up the posts
of Assistant Engineer (C), the appellants applied therefor and were
subsequently appointed. Appellant No. 1 joined the post of Assistant Engineer
(C) on 9.11.1978, whereas the Appellant No. 2 joined his post on 12.07.1979.
Respondent No. 1, however, was admittedly appointed on or about 12.10.1976.
The
State Government thereafter created Development Authorities Centralised Service
with effect from 22.10.1984 by inserting Section 5-A therein. In terms of
Sub-Section (2) of Section 5-A, a person serving on the posts included in such
service immediately before such creation shall finally or provisionally be
absorbed in the Development Authorities Centralised Service if he was confirmed
in his post or if he was holding temporary or officiating appointment, as the
case may be. The appellants were absorbed in the posts of Assistant Engineer.
It is
not in dispute that Respondent No. 1 was provisionally promoted to the Post of
Assistant Engineer on purely reference basis by an Office Memorandum dated 3rd May, 1986. Appellants were said to have been
promoted to the post of Assistant Executive Engineer on purely ad hoc basis in
terms of Office Memorandums dated 3rd May, 1986 and 31st
January, 1987. The
appellants as also Respondent No. 1 were finally absorbed in the Centralised
Service on the post of Assistant Engineers by an Office Memorandum issued on 14 May, 1987.
The
State Government issued a seniority list in terms of Office Memorandum dated 12th April, 1996. The said seniority list was the
subject matter of Writ Petition filed by Respondent No. 1. In the meantime,
Appellant No. 1 was promoted to the Post of Chief Engineer resulting in filing
of second Writ Petition before the Lucknow Bench of Allahabad High Court by the
Respondent No. 1. However, during pendency of the said Writ Petition, the order
of promotion of Appellant No. 1 was rescinded on 29.11.2001. Several
applications thereafter were filed before the State Public Services Tribunal
questioning the said seniority list and the promotion to the Posts of Executive
Engineer and Chief Engineer. The Tribunal allowed the said applications whereagainst
the State of Uttar
Pradesh preferred
several writ applications. The writ petitions together with the writ
applications pending before it were taken up for hearing by the High Court and
by reason of the impugned judgment dated 23.05.2002 it was held as follows:
"Having
examined the materials on record and the submissions made by the parties and in
the light of various decisions of the Supreme Court referred hereinabove, we
find no infirmity in the impugned judgment of the Tribunal and the Tribunal has
not erred in directing the State Government to determine the seniority of the
claimants and to grant promotions with effect from the date their juniors have
been so promoted.
Therefore,
while affirming the judgments of the Tribunal, we direct that in the light of
the decision of the Apex Court in the case of Mohan Karan's1 case, the
seniority in the cadre of Junior Engineers, Assistant Engineers and Chief
Engineers shall be counted from the date of initial appointment and the members
of the Centralised Service who had rendered service in other departments on
similar/ equivalent posts, shall be decided in the light of the decisions of
the Supreme Court and the observations made hereinabove. The State Government
shall make endeavour to comply directions of the Tribunal with respect to
fixing of seniority and promotion of the claimant – respondents within three
months." It is not in dispute that two different rules relating to
determination of seniority were operating in the field; one being a general
rule known as 'The Uttar Pradesh Government Servants Seniority Rules, 1991';
the other being the special rules known as 'U.P. Development Authorities Centralised
Service Rules, 1985' framed by the State of Uttar Pradesh in exercise of its
powers conferred under Section 55 of the Uttar Pradesh Urban Planning and
Development Act, 1973 read with Section 5-A thereof.
RELEVANT
STATUTORY PROVISIONS:
The
relevant rules of U.P. Development Authorities Centralised Service Rules, 1985
which are material for the purpose of this case read as under:
"PART
II CADRE AND STRENGTH
3. (1)
There shall be the following categories of the posts in the cadre of the
service and they shall consist of the posts mentioned against them – Service
Posts included in the service Scales of Pay in Rs 1 2 3 I to III Omitted IV.
Town Planning & Architectural
1. Mukhya
Nagar Niyojak 1780-2300
2. Nagar
Niyojak 1250-2050
3. Sahayak
Nagar Niyojak 850-1720
4. Vastuvid/Statistical
Assistant 570-1100 5 to 10 Omitted V to VIII Omitted Note. - The undernoted
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.
Post Post(s)
included (1) to (8) Omitted (9) Mukhya Nagar Niyojak Vastuvid Niyojak (10) Sahayak
Nagar Niyojak Vastuvid (Rs. 850-1720)/Sahayak Vastuvid/Landscape 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.
7. (1)
Notwithstanding 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 rendered in a Development Authority, Nagar
Mahapalika, Nagarpalika or Improvement Trust on similar posts.
21.
Procedure for recruitment by promotion:
Recruitment
by promotion shall be made on the basis of seniority subject to the rejection
unfit (in accordance with the Uttar Pradesh Promotion by selection in
Consultation with Public Service Commission (Procedure) Rules, 1970 as amended
from time to time.
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 order :
Provided
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.
* * *
(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
relevant provisions of Uttar Pradesh Government Servants Seniority Rules, 1991
read as under:
"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 Rules shall have effect notwithstanding anything to the contrary
contained in any other service rules made heretobefore.
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;
(g)
'service rules' means 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;
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."
PRIMAL
QUESTION:
The
dispute between the parties before the High Court as stated in the impugned
judgment is as under:
"The
crux of the matter in these petitions is fixation of seniority and
consequential promotions.
As
mentioned earlier with effect from 12.6.1973 the Uttar Pradesh Planning and
Development Ordinance, 1973 was promulgated for the purpose of creating various
development authorities in Uttar Pradesh. The said ordinance later on became
the Act (U.P. Act No. 11 of 1973) which came into existence on 7.11.1973. In
pursuance of the said ordinance and Act, various development authorities were
created through notification issued in exercise of the powers under Section 4
of the said Act of 1973. In the development authorities, initially besides
other staff, Junior Engineers and Assistant Engineers were appointed by the
concerned authorities of respective development authorities. Thereafter, some
Junior Engineers were promoted to the post of Assistant Engineer in 50%
promotion quota and some Assistant Engineers were promoted to the post of
Executive Engineer." SUBMISSIONS:
Mr. Rakesh
Dwivedi, learned senior counsel appearing on behalf of the appellants raised a
short question in this appeal. The submission of learned counsel is that the
High Court went wrong in applying the 1991 rules relying on or on the basis of
decision of this Court in Mohan Karan (supra) without effectively considering
the provisions of Article 309 of Constitution of India. It clearly stipulates
that in terms of proviso appended thereto the Governor can frame a rule so long
as the State or the concerned statutory authorities do not make any provisions
laying down the conditions of service by or under a statutory enactment. In
other words, once a Legislation has come into being and rules have been framed thereunder
governing the field, the general rules made by the Governor in terms of proviso
appended to Article 309 of the Constitution of India must give way to the
special rules framed under the statute. Thus, when there exist Special Rules,
General Rules cannot be applied. Strong reliance in this behalf has been placed
on [(2002) 6 SCC 127].
The
learned counsel would further submit that the decision of this Court in Mohan Karan
(supra) does not lay down a good law.
Mr. Dwivedi
would urge that as the appellants were absorbed in the centralised services,
their seniority shall be determined in terms of Rule 7 of the 1985 Rules. He
would in this connection lay emphasis on the words 'on similar posts' occurring
in Rule 7.
Mr. Harish
Salve, the learned Senior Counsel, on the other hand, would submit that
assuming that the special rule shall apply in the instant case; the same would
be of not much relevance as the seniority has to be determined in terms of
Sub-Rule (1) of Rule 7 of 1985 Rules on the criteria of continuous length of service
including the service rendered in a Development Authority, Nagar Mahapalika, Nagarpalika
or Improvement Trust on similar posts, and as the manner for determination of
continuous length of service is not provided in the said sub-rule, the general
rule must be taken recourse to for the said purpose. In this connection our
attention has been drawn to the cadre of Service contained in Rule 3 of the
1985 Rules.
FINDINGS
It
appears that having regard to the absorption of the employees from different
authorities in the Centralised Service on 22.10.1984, according to the High
Court, some sort of chaos was created amongst the members of the Service. The
High Court relying on or on the basis of a Division Bench decision of this
Court in Mohan Karan's case (supra) held that the provisions of the Rules 1991
shall apply for the purpose of determination of inter se seniority. Therein it
was held:
14. We
have already extracted Rule 6 of these Rules, which relates to seniority where
the appointments are 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 the 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 servants in U.P.
should be fixed in the light of these Rules. Therefore, we are inclined to hold
that Rule 6 of the U.P. Government Servants' Seniority Rules, 1991 cannot be
ignored as it has overriding effect on Rule 7 of the Centralised Services
Rules.
The
1991 Rules were framed by the Governor of Uttar Pradesh in exercise of his
power conferred under the proviso appended to Article 309 of the Constitution
of India. The Proviso appended to Article 309 of the Constitution reads thus:
"Provided
that it shall be competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of the Union, and
for the Governor of a State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service of persons appointed,
to such services and posts until provision in that behalf is made by or under
an Act of the appropriate Legislature under this article, and any rules so made
shall have effect subject to the provisions of any such Act." On a plain
reading of the said provision, there cannot be any doubt whatsoever that rules
framed thereunder would apply so long as a statute or statutory rules or any
other subordinate legislation governing the conditions of service are not
enacted or made or not otherwise operating in the field. In other words, rules
made under proviso to Article 309 of the Constitution are for a transitory
period and the same would give way to the special rules once framed. However,
if a statute or rules made thereunder was/were already operating in the field,
the general rules made under proviso to Article 309 would not apply to the
Services created thereunder.
The
submission of Mr. Dwivedi to the aforementioned extent appears to be correct.
In the
event two conflicting rules are operating in the same field, the doctrine of generalia
specialiabus non derogant shall apply. It was so held in Chandra Prakash Tiwari
(supra).
But
the question which arises for consideration in these appeals does not solely
depend on the applicability of the general rules vis-à-vis the special rules.
It is
true that the appellants were sought to be promoted to the Posts of Assistant
Executive Engineer. The said posts, however, were not available.
They
were, therefore, absorbed ultimately in the posts of Assistant Engineer.
The
State of U.P. in its counter affidavit stated:
"It
is stated that petitioner No. 1 was promoted on temporary basis by Lucknow
Development Authority till further orders on the post of Assistant Executive
Engineer…It is relevant to mention that on 22.10.1984, the petitioners were
working on the post of Assistant Executive Engineer. Upon creation of the U.P.
Development Authorities Centralised Service, since there was no post of
Assistant Executive Engineer in the said service, hence the petitioners were
absorbed on the post of Assistant Engineer in the service." What was,
therefore, relevant for the purpose of determination of seniority even in terms
of Rule 7 of the 1985 Rules, was the continuous service rendered by the
concerned employees 'on similar posts', which would mean posts which were
available having been legally created or borne on the cadre.
The ad
hoc or temporary promotion granted to the appellants on 03.05.1986 and
13.01.1987 respectively on non-existent posts of Assistant Executive Engineer
would not, therefore, confer any right of seniority on them. Thus, for all
intent and purport for the purpose of determination of seniority, the
appellants were not promoted at all. Once they have been absorbed with
Respondent No. 1 and other employees similarly situated, their inter se
seniority would be governed by the statutory rules operating in the field. The
case of the appellants vis-à-vis Respondent No. 2 although may be governed by
the special rules, in terms of Rule 7, the same has to be determined on the
criteria of continuous length of service including the service rendered in a
Development Authority, Nagar Mahapalika, Nagarpalika or Improvement Trust on similar
posts. The appellants, it will bear repetition to state, although were promoted
at one point of time on purely ad hoc basis to the posts of Assistant Executive
Engineer as the said posts even in their parent authority were not of similar
type, the same would not be relevant for the purpose of determining the inter
se seniority. If the rule of continuous service in same and similar posts is to
be resorted to, the date of initial appointment would be a relevant criteria therefor.
[See M. Education and others [(2002 AIR SCW 19)], this Court held:
"The
claim of seniority of the employee is always determined in any particular Grade
or Cadre and it is not the law that seniority in one Grade or Cadre would be
dependent on the seniority in other Grade or Cadre." As the post of
Assistant Executive Engineer was not a cadre Post, the appellants cannot be
said to have been working on a higher post for the purpose of Rule 7 of the
1985 Rules.
others
(2002 AIR SCW 68), it was held:
"The
corollary of the above Rule is, where the initial appointment is only adhoc and
not according to the rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering the seniority."
CONCLUSION:
In
view of our findings aforementioned, we have no other alternative but to uphold
the order of the High Court, albeit for different reasons.
Accordingly,
the Appeals are dismissed. The parties shall pay and bear their own costs in
these appeals.
In
view of aforementioned, it is not necessary to pass any separate order on the
Interlocutory Applications.
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