HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 14.03.2011 Judgment delivered on 26.05.2011 Civil Misc. Writ Petition No.11134 of 2006 Arun Kumar Srivastava Vs. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. K. N. Pandey, J.
The petitioner is serving as Executive Engineer in the Minor Irrigation Department and was posted at Basti on 16.2.2006, when the writ petition was filed. The respondent Nos.3 to 37 are serving as Executive Engineers and Asstt. Engineers in the same department. By this writ petition the petitioner has challenged the seniority list dated 30.8.2005 on the ground that he has been placed much below his juniors.
We have heard Shri Anil Kumar Srivastava, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Maqsood Ahmad, Shri Parvez Alam and Shri Vikas Budhwar appear for the contesting private respondents.
Brief facts giving rise to this writ petition are as follows:-
The petitioner was appointed as Asstt. Engineer in the Minor Irrigation Department on adhoc basis on 24.11.1980. The appointment letter provided that he will have to appear in the examination conducted by the U.P. Public Service Commission and in case he fails, his services will be terminated. The petitioner appeared in the selections in pursuance to the advertisement published by the U.P. Public Service Commission on the requisition sent by the State Government in the year 1982. He was declared selected and placed at Sl. No.2 in the merit list dated 21.9.1984, sent by the U.P. Public Service Commission to the State Government. A writ petition challenging the examination conducted by the U.P. Public Service Commission was rejected.
A tentative seniority list of Asstt. Engineers working in the department was published on 17.11.1992 and that final seniority list was published on 19.3.1996. The petitioner's name was included in the list at Sl.No.75. The petitioner was promoted as Executive Engineer and was given seniority above Shri K.N. Singh placed at Sl.No. 58 in the seniority list dated 19.3.1996. This seniority list was amended on 22.8.1998 against which Writ Petition No.33729 of 1998 was filed. The writ petition was connected with several pending writ petitions. The Court passed an interim order on 4.5.1999 to the effect that in the meanwhile the respondent shall not act on the basis of seniority list. It is stated that the order dated 22.8.1998 amending the final seniority list dated 19.3.1996 was withdrawn on 26.11.2001 and the final seniority list dated 19.3.1996 was reviewed. Later on the final seniority list dated 19.3.1996 was cancelled and a fresh tentative seniority list was published on 11.7.2005. Several writ petitions were filed challenging the change in seniority positions by the tentative seniority list published on 11.7.2005. The final seniority list was published on 30.8.2005. It is alleged that by order dated 29.8.2005 the date of regularisation of several Asstt. Engineers was changed. The petitioner challenged the order by amendment application in Writ Petition No.35729 of 1998. One Shri Devendra Nath Shukla and Shri Rajendra had filed Writ Petition No.18657 of 1999 challenging the seniority list. By judgment dated 29.9.2005 the writ petition was dismissed on the ground:- (a) The U.P. Government Servant Seniority Rules, 1991, have no bearing in the case, for the purpose of determining interse seniority, which is to be determined as per the law existing prior to the enforcement of the Rules. (b) Seniority once settled cannot be disturbed after lapse of several years but that in this case the seniority had always been under challenge, either before the High Court or at Tribunal. In none of these cases the necessary parties were impleaded and thus Shri Devendra Nath Shukla and Shri Rajendra, even if they were regularised w.e.f. 3.12.1985 could not claim seniority prior to that date. The petitioner could not claim seniority over and above the respondents, who were appointed in substantive capacity by way of regularisation, prior to them, and if no relief can be granted to them the examination of the issue would be a futile exercise. It is stated by Shri Anil Kumar Srivastava that the case of Shri Arun Kumar Srivastava, the petitioner in this writ petition was not considered in Devendra Nath Shukla's case. The petitioner was appointed as Asstt. Engineer on adhoc basis on 24.11.1980 and was thereafter selected through the Public Service Commission and was placed in the merit list dated 21.9.1984. It is stated that in the meantime those Asstt. Engineers, who were similarly situate and appointed on adhoc basis, but could not be selected in the selections held in pursuance to the advertisement published by U.P. Public Service Commission in the year 1992, were considered for regularisation and by order dated 3.12.1985 they were regularised under the Regularisation Rules of 1979, as amended in the year 1984. The petitioners are challenging the seniority positions of those persons, who were appointed on adhoc basis and who were regularised on 3.12.1985, on the ground that they did not appear in the open selections and thus must be treated as junior to the petitioner appointed through the Public Service Commission. By impugned Office Memorandum dated 30th August, 2005 the objections of all the concerned Asstt. Engineers were decided by the Principal Secretary oft he department. The State Government in implementation of the judgment in special appeal filed by Shri Madan Pal Singhal decided on 16.1.2004, found that prior to taking decision on the question of seniority amongst the disputants namely those, who were appointed on adhoc basis and thereafter selected through the Public Service Commission, a decision was required to be taken, on the amendment of the dates of their regularistion. It was found that in pursuance to the judgment dated 16.1.2004 a recommendation was made to correct the dates of regularisation of the Asstt. Engineers appointed on adhoc basis. The High Court in Madan Pal Singh's case, Special Appeal No.72 (SB) of 1993 by its judgment dated 16.1.2004 had quashed all the recommendations of the dates of regularisations and had directed the matter to be decided. The objections were invited to the tentative seniority list dated 11.7.2005 upto 1.8.2005. The 67 engineers filed their representations. The State Government in its impugned order dated 30th August, 2005 deciding these objections found as follows:- (a) The judgment in Madan Pal Singhal's case dated 16.1.2004 is applicable to all the engineers of the service, The judgment gives guidelines to determine seniority after considering various rules of regularisation; (b) All the adhoc engineers serving in the department were required to be considered for regularisation before any regular appointment was made in pursuance to the recommendations of the Public Service Commission. The benefits of the Rules of Regularisation of 1979 as amended in 1984 had to be given to those, who were serving on adhoc basis before calculating the vacancies to be forwarded to the Public Service Commission. (c) By the time the amendment to the Regularisaton Rules were published, some of the Asstt. Engineers serving on adhoc basis have appeared in the selection conducted by the Public Service Commission and were included in the select list. The persons, who were regularised with effect form the date prior to their inclusion in the select list were not entitled to be given benefit for appointment all over again in pursuance to their inclusion in the select list of the Public Service Commission. (d) The persons, who were waiting for regularisation for a long time could not be deprived of the benefit on account of the negligence of the appointing authority in considering them for regularisation under the Statutory Rules of 1979 as amended in 1984. (e) The judgment in Farhat Husain Azad vs. State of U.P. & Ors., Writ Petition No.10504 of 2004 decided on 10.12.2004, by a Full Bench relates to the Rural Engineering Service of which the facts and circumstances are entirely different and in which it was held that a person appointed on adhoc basis on a post dehorse the rules or without following any procedure prescribed by law, could not claim benefit of reckoning the period of service rendered by him as such for the purposes of seniority or promotion. The State Government thereafter considered each of the representation and assigned seniority to the Asstt. Engineers with effect form the date, when they become eligible for regulariation i.e. on the day they completed 3 years as adhoc Asstt. Engineers. For example Shri Ramvir Singh was given the date of appointment as 18.7.1985, when he completed 3 years of his adhoc appointment made on 27.5.1982 in pursuance to which he joined on 19.7.1982. He was made senior to persons appointed through the Public Service Commission as the first list was made available by the Public Service Commission on 21.9.1984, in pursuance to which after medical examination and in compliance with other conditions, the persons of the first list were issued appointment letters on 18.8.1986.
(f) In Rule 5 (1) (a) of the U.P. Engineering Service (Minor Irrigation Department) Rules, 1991 the vacancies are to be filled in the ratio of 50:30:20 for agricultural, civil and mechanical engineering. The rule of seniority is not applicable in filling up these posts. The ratio does not determine the seniority in which they are to be appointed or treated.
Learned counsel for the petitioner submits that the contesting respondents did not qualify in the selections advertised by the Public Service Commission. The seniority of the contesting respondents on their appointment on adhoc basis prior to the petitioner would not give them any benefit, as they were regularised much after the selections were held by the Public Service Commission and in which they did not qualify. Three different select list were published. The select list for agricultural engineering was published on 21.9.1984, for mechanical engineering in February, 1985, and for Civil Engineering on 30.4.1985. The delay in issuing the appointment letters on account of challenge to the examinations should not give any benefit to those persons, who did not qualify in the selections for direct recruitment.
He further submits that the decision taken to the State Government is illegal arbitrary and against the settled principles of determination of seniority, decided by the Supreme Court and the High Court. The persons selected through direct recruitment in open competition must be given a place according to the merit list and such persons should be treated to be senior to the persons, who were serving on adhoc basis and were later regularised.
We are of the opinion that the issues raised in this writ petition are covered by Devendra Nath Shukla's case (Supra). The Division Bench has decided the same issues. The Court observed that after several rounds of litigation the Asstt. Engineers appointed on purely adhoc basis in different years prior to 1981 in the Minor Irrigation Department (established in 1966) appeared in the selection advertised by the U.P. Public Service Commission for 56 vacancies vide Advertisement dated 16.6.1982. After final result was declared, the petitioners were offered appointment vide appointment letters dated 30.8.1986 and 18.6.1986. Prior to the declaration of the result by the Commission the adhoc appointees were considered for regularisation under the provisions of the U.P. Regularisation of Adhoc Appointments (On the Posts within the Purview of the Public Service Commission) Rules, 1979 amended vide order dated 22.3.1984. Their services stood regularised with effect from 3.12.1985 before the direct recruits (who were earlier serving on adhoc basis) were appointed.
After referring to Madan Pal Singh's case and the same final seniority list dated 30th August, 2005, which is under challenge in this writ petition the Division Bench posed a question as follows:-
"The controversy involved herein is as to whether the private respondents, whose services stood regularised vide order dated 3.12.1985 against substantive vacancies prior to present petitioners who were appointed in substantive capacity on 18.6.1986 and later, can claim the seniority over and above the said respondents."
As observed the Division Bench held that the U.P. Government Servant Seniority Rules, 1991, had no bearing in the case for the purposes of determining interse seniority as it had to be determined as per law existing prior to that date and further the petitioners (adhoc appointees recruited later by direct recruitment through Public Service Commission) cannot claim seniority over and above the respondents, who had been appointed in substantive capacity by way of regularisation prior to them.
We find substance in the submission of learned counsel for the respondents that the questions raised in this writ petition are covered by the judgment in Devendra Nath Shukla's case and that no new ground has been raised. We also agree with reasoning given in the said judgment.
The counsel for the petitioner has not pressed any other point.
The writ petition is dismissed.
Dt.26.05.2011 SP/