Kamlesh Kumar Gupta vs State Of U.P. & Others
2013 Latest Caselaw 6800 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
(1) Writ Petition No.1043 (SB) of 1995 
 
Kamlesh Kumar Gupta	 	Vs	State of U.P. and others 
 

 

 
(2) Writ Petition No.843 (SB) of 1999 
 
A.K. Kapoor and others 	Vs	          State of U.P. and others 
 

 
(3) Writ Petition No.16 (SB) of 1999 
 
Sarvesh Narain Mishra 
 
and another 		 	Vs	          State of U.P. and another
 

 
(4) Writ Petition No.953 (SB) of 1999 
 
Sarvesh Narain Mishra	 	Vs	U.P. Rajya Krishi Utpadan
 
						Mandi Parishad and others
 

 
(5) Writ Petition No.1051 (SB) of 1999 
 
Jitendra Kumar Singh and 	Vs	          State of U.P. and others  
 
another
 

 
(6) Writ Petition No.1092 (SB) of 1999 
 
P.C. Jain 				Vs	State of U.P. and others 
 

 
(7) Writ Petition No.312 (SB) of 1999 
 
Narendra Kumar and another	Vs	State of U.P. and others 
 

 
(8) Writ Petition No.1087 (SB) of 1999 
 
A.K. Kapoor and others 	Vs	          State of U.P. and others 
 

 
(9) Writ Petition No.1088 (SB) of 1999 
 
A.K. Kapoor and others 	Vs	          State of U.P. and others 
 

 
(10) Writ Petition No.1267 (SB) of 1999 
 
Amar Nath Nakra and others 	Vs       State of U.P. and others 
 

 
(11) Writ Petition No.311 (SB) of 1999 
 
Kanhaiyalal  and another 	Vs	           State of U.P. and others 
 

 
(12) Writ Petition No.1815 (SB) of 1999 
 
Ram Chandra Chaudhary 	Vs	          Uttar Pradesh Rajya Krishi 							Utpadan Mandi Parishad & ors		
 
-------------- 
 
Hon'ble Rajiv Sharma, J.

Hon'ble Dr. Satish Chandra, J.

Heard Mr. S.K.Kalia, Senior Advocate assisted by Rajan Roy, learned Counsel for the petitioners, Mr. N. C. Mehrotra, learned Counsel for Parishad and Mr. Sandeep Dixit, learned counsel for the contesting respondents.

Writ Petition No.311 (SB) of 1999 has been preferred by one Kanhaiya Lal and A.K. Kapoor, working as Assistant Engineer and Deputy Director (Construction) respectively in Mandi Parishad inter alia on the ground that absorption/appointment of private respondents, namely, P.C. Jain and J. K. Singh in Mandi Parishad is wholly illegal and de hors the rules. According to the petitioners, private respondents, namely, P.C.Jain and J.K.Singh were working as Assistant Engineers in the Rural Engineering Service Department, who came on deputation to the Mandi Parishad in the year 1992 and later on, vide order dated 18.4.1995 were given the charge of Deputy Director (Construction).Moreover, the private respondents were absorbed in the department without necessary approval of the State Government.

Writ Petition No.312 (SB) of 1999 has been filed by one Narendra Kumar and Raj Krishi Utpadan Mandi Parishad Takniki Sangh through its President inter alia claiming therein to declare the appointment/absorption of private respondents, namely, Fakrey Alam and Ram Teerath Yadav to be illegal and void. They further sought a writ of Certiorari for quashing the Government Orders dated 14.10.1995 so far as it relate to private respondents. The main contention is that U.P.Agricultural Produce Markets Board (Officers and Staff Establishment) Regulations, 1984 [ in short referred to as Service Regulations of 1984] being framed under Section 26 (x) of U.P.Krishi Utpadan Mandi Adhniyam, 1964, have binding force and no appointment can be made ignoring the statutory provisions. Therefore, the private respondents who were working as Assistant Engineer in Bridge Corporation cannot be absorbed.

Writ Petition No. 16 (SB) of 1999 and Writ Petition No. 953 (SB) of 1999 have been filed by one Sarvesh Narain Mishra. According to him, he was given substantive appointment on the post of Assistant Engineer in the year 1989 in Rural Engineering Service Department on the basis of recommendations made by the U.P. Public Service Commission. Subsequently, vide order dated 4.8.1992 issued by the Director, U.P. Rajya Krishi Utpadan Mandi Parishad, he was appointed on deputation in the Mandi Parishad as Assistant Engineer. With a view to strengthen and improve the working in Engineering Cadre, the Director Mandi Parishad vide letter dated 24.7.1995 sought permission from the State Government for merger of the petitioner in Mandi Parishad on the post of Deputy Director (Construction) on which he was working at the relevant point of time i.e. 24.7.1995. The State Government accorded its approval vide G.O. dated 14.9.1995 for merger/appointment of the petitioner in exercise of the powers conferred upon it under Section 26-F(2) of the Act read with Regulation 30 Service Regulations, 1984.

During the aforesaid period series of correspondence took place between the Mandi Parishad and the State Government and ultimately the State Government issued a G.O. dated 14.9.1998 clarifying with regard to prior approval for merger/appointment of the petitioner on the post of Deputy Director (Construction) in the Mandi Parishad and it also clarified that the said prior approval was granted by the State Government in exercise of powers conferred upon it under Section 26-F(2) of the Act and after relaxing the conditions of the Regulations, the Government had also made it clear that the ban imposed vide D.O. Letter dated 3.11.1995 was not imposed in the merger/appointment of the petitioner on the post of Deputy Director (Construction). When the directions given by the G.O. dated 14.9.1998 were not implemented by the authorities of the Mandi Parishad, he filed writ petition no. 16 of 1999(SB), which has also been connected with this batch of writ petitions.

In the meantime, the Director, Mandi Parishad promulgated a final seniority list of the Assistant Engineers of the Mandi Parishad on 30.7.1997 in which his name was wrongly placed at Serial No. 45, as such it was challenged before the State Public Service Tribunal by the petitioner and 7 others similarly situated persons individually. By the judgment and order dated 30.4.1999, the Tribunal allowed the claim petition and quashed the seniority list dated 30.7.1997 with the direction to re-determine the seniority of the petitioner and other claimants on the basis of their length of service rendered in the parent department as well as in the Mandi Parishad. The main prayer of the petitioner in the instant writ petition is that a direction be issued to opposite parties nos. 1 and 2 to provide the status and responsibilities of the Deputy Director (Construction) on which he was given appointment after merger vide order dated 19.9.1995.

Writ Petition No. 843 (SB) of 1999, Writ Petition No. 1087 (SB) of 1999 and Writ Petition No. 1088 (SB) of 1999 have been preferred by S/Sri A.K.Kapoor, Kanhaiya Lal and Kamlesh Kumar Gupta.

In Writ Petition No. 843 (SB) of 1999 petitioners have assailed the judgment dated 30.4.1999 of the Tribunal whereby the Tribunal has quashed the seniority list dated 30.7.1997 of the Assistant Engineers of the Mandi Parishad and has directed the Mandi Parishad to re-determine the final seniority list after giving benefit of the past services rendered by the claimants in their parent department. In this writ petition, S/Sri Fakhrey Alam and S.S.Parmar have been arrayed as respondents nos. 4 & 5. Their contention is that when the claimant did not raise any objections to the tentative seniority list dated 30.7.1997, they have lost their rights and had become dis-entitled to challenge the final seniority. Furthermore, when there is no provision either under the Rules or any Act for granting the benefit of past services to the claimant for the purposes of seniority in the Mandi Parishad, the learned Tribunal exceeded its jurisdiction.

In Writ Petition No. 1087 (SB) of 1999, the aforesaid petitioners, have sought similar prayer for quashing the judgment of the Tribunal dated 30.4.1999. This writ petition is identical to the writ petition no. 843 (SB) of 1999 except the fact that in place of S/Sri Fakhrey Alam and S.S.Parmar, the other persons, namely, N.Mishra, K.K.Singh, Ram Tirath yadav and Pawan Kumar have been arrayed as respondents.

Similar is the position in Writ petition No. 1088(SB) of 1999 wherein except the aforesaid persons, other persons, namely, J.K.Singh, S.S.Parmar and P.C.Jain, who were employees of Rural Engineering Services in the State Government having been appointed as Assistant Engineer came on deputation in Mandi Parishad in September, 1992 and were absorbed later on.

Writ Petition No. 1051 (SB) of 1999 has been filed by above referred Jitendra Kumar Singh and S.S.Parmar [arrayed as respondents in Writ petition No. 1088 (SB) of 1999] claiming therein to direct the official respondents to provide the status and responsibilities of the post of Deputy Director (Construction), the post on which they were appointed by the order dated 19.9.1995.Their contention is that 26-F(2) of the Act read with Regulation 30 envisages exception in the recruitment process and they were given appointment on the post of Deputy Director (Construction) in exercise of powers conferred under the aforesaid provision, therefore, their reversion vide orders dated 21.10.1997, 13.2.1998 and 3.4.1998 is wholly unjustified and unwarranted. Moreover, before passing the order of reversion, no opportunity of any sort was afforded to the petitioner though it is settled law that any order which entails civil consequence must be in consonance with the principles of natural justice.

Kamlesh Kumar Gupta has preferred writ petition No. 1043 of 1995 (SB), claiming that he has been superseded by private respondent Nos. 3 to 10 on the post of Deputy Director (Construction) in a most arbitrary and illegal manner. The other ground of the petitioner is that private respondent Nos. 3 to 10 have been inducted through deputation without fulfillment of necessary requirement as per Regulation 10 (3) including the approval of the State Agricultural Produce Market Board, Lucknow.

P.C. Jain (one of the respondent in writ petition No. 1088 (SB) of 1999) has preferred writ petition No. 1092 (SB) of 1999, praying inter alia therein that the official respondent be directed to provide the status and responsibilities of the post of Deputy Director (Construction), the post on which he was appointed by an order dated 19.9.1995.

Amar Nath Nakra, Satish Chandra Gupta, Chandra Bhushan Pandey, Raghuveer, Subodh Chandra Mishra, Vinay Kumar Saxena, Hakim Singh, Subhash Chandra Tewari and Satya Prakash have filed writ petition No. 1267 (SB) of 1999 against the judgment and order dated 30.4.1999 passed by the State Public Services Tribunal, whereby the Tribunal had quashed the final seniority list of Assistant Engineer in the Mandi Parishad dated 30.7.1997.

Ram Chandra Chaudhary has preferred writ petition No. 1815 (SB) of 1999, praying therein that official respondent may be directed to grant promotion to the petitioner on the post of Assistant Engineer (Civil) with retrospective effect from 1.5.1994, the date on which he has completed 10 years' service on the post of Sangrak (Computor) as required for promotion under the Service Rules.

It has been argued by the petitioners of writ petition No. 843, 1088 1087 of 1999 (S/B) and other identical writ petitions that the Mandi Parishad is a statutory corporation having been constituted and established under the Krishi Utpadan Mandi Adhiniyam, 1964. It is an autonomous body. Petitioners are regular employees of Mandi Parishad. A.K. Kapoor is a substantively promoted Deputy Director Construction/Executive Engineer, whereas Kanhaiya Lal and Kamlesh Kumar Gupta are substantively promoted Assistant Engineer. The seniority of members of a cadre in the service of the Mandi Parishad is determined as per Regulation 18 of the Service Regulation, 1984 and under Section 26X of the Mandi Adhiniyam, 1964, which reads as under :

"18. (1) Except as hereinafter provided, the seniority of persons in any category or grade of posts in the service shall be determined from the date of the orders of substantive appointment and if two or more persons are appointed together, by such other, the order in which their names are arranged in the appointment order:

Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, 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.

(2) The seniority inter-se of persons appointed directly on the result of any one selection, shall be the same as determined by the selection committee. Provided that a candidate recruited directly may lose seniority if he fails to join without valid reasons. When vacancy 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.

(4) Where appointments are made both by promotion and direct recruitment, the inter-se seniority shall be determined by arranging the names in a cyclic order in a combined list, prepared in accordance with regulation 14, in such manner that the prescribed percentage is maintained."

The absorbed employees/private respondents came on deputation to the Mandi Parishad as Assistant Engineer in the year 1992 on different dates. Prior to it they were working as Assistant Engineer in their parent departments, i.e., Rural Engineering Service, Irrigation Department of the Government of U.P., U.P. Jal Nigam and Bridge Corporation. They are alleged to have been absorbed in the Mandi Parishad on 19.9.1995.

It has further been stated that in the event this Court hold that the very absorption/appointment in the Mandi Parishad is dehors the provisions of law, the private respondents shall not be entitled to assignment of any seniority in the service of the Mandi Parishad and those who are still in service will be liable to be repatriated back. The Tribunal has held that the private respondents herein were absorbed on the post of Assistant Engineer under the direct recruitment quota and not on the post of Deputy Director (Construction). It has also held that absorption was not a source of recruitment under the Service Regulations of 1984 and, therefore, their absorption was not in accordance with the said Regulations. Therefore, the Tribunal ought to have rejected the claim petitions of the respondents as the first and foremost requirement for assignment of seniority in a cadre is that the appointment by whatever mode should be in accordance with the rules and not dehors the same. In this case, as the Tribunal itself has recorded the finding that the absorption of the eight Engineers/private respondents herein was not in accordance with Service Regulations of 1984 and absorption was not a mode of recruitment under the said Regulation, therefore, it should have dismissed the claim petition and in not doing so, it has committed a manifest error.

The Tribunal has not considered the issue that if the appointments in question were not in accordance with Regulations of 1984, then, whether any seniority could be assigned to them in the cadre of Assistant Engineers in the Mandi Parishad. It has also not held that such appointments were made under any other provisions of law. Therefore, instead of dismissing the claim petitions on the above grounds, the Tribunal committed an error in proceeding on the premise that as the absorption of the claimants before it (respondents herein) was not in accordance with the Service Regulations of 1984, their seniority could not be determined under Regulation 18 of the 1984 Regulations and the Director Mandi Parishad erred in treating the date of their absorption on the post of Assistant Engineers in the Mandi Parishad as the date of their substantive appointment in the said cadre for the purposes of Regulation 18, ignoring the fact that the seniority in a cadre of the Mandi Parishad could only be determined under the said Regulation as there was no other provision for the said purpose. The validity of Regulation 18 was not challenged. It also failed to appreciate that seniority of members of a cadre could not be determined under different rules/criteria.

The learned Tribunal has also failed to appreciate that the case at hand was not one of transfer from one department to another department of the State Government where the employer remained unchanged but it involved change of employer. The status of employees of the State Government and those of the Mandi Parishad, the mode of their recruitment etc. was different. The learned Tribunal also failed to appreciate that the claimants before it came on deputation and were allegedly absorbed of their own volition and no such condition was agreed upon that they would be given the benefit of the past services rendered by them in their parent department for the purposes of determining their seniority in the cadre of Assistant Engineer in the Mandi Parishad. There is neither any provision under the Service Rules nor there was any order of the Government or any Resolution of the Board which permitted the grant of such benefit for the purposes of seniority.

The judgments relied upon by the learned Tribunal were not applicable in the facts and circumstances of the case. In Tara Chand Gupta's case the State Government had evolved a method of determining seniority of the absorbed employee by issuing an administrative order but in the instant case, the Mandi Parishad i.e. the employer had taken such a decision. In the case of K. Madhwan and S.K. Mathur, referred in the judgment, there was question of deputation and absorption from one department of the State Government to another, which is not the case here. In the case of S.S. Moghe, there was a provision in the service rules itself for grant of the benefit of past services rendered in the parent department but there is no such rule in the instant case.

The learned Tribunal has failed to appreciate the distinction between the grant of benefit of past services for the purposes of giving charge of the higher post or promotion in another organization and the grant of such benefit for the purpose of seniority.

The learned Tribunal has also failed to weigh the equities between the deputationists/absorbed employees and the regular employees of the Mandi Parishad and by granting the benefit of past services had allowed the deputationists to steal a march ahead of regular employees of Mandi Parishad,which is bound to result in demoralization and had caused prejudice to them.

To strengthen his contentions, Counsel for the petitioners, Sri Kalia, Senior Advocate has relied upon the decisions rendered in Syed Khalid Rizvi vs. Union of India (1993) Suppl. (3) 575, Suraj Prakash Gupta vs. State of J & K (2000)7 SCC 561, R.S.Garg vs. State of U.P. and others (2006) SCC 430, K.C.Joshi vs. Union of India (1992) Suppl. 272. As regard the assertion that no benefit of seniority can be conferred on the basis of illegal appointment, reliance has been placed upon Rupa Rani Rakshit and others (2010) 1 SCC 345, Sheshmani Shukla vs. DIOS; (2009) 15 SCC 436 and Ritesh Tiwari and another vs. State of U.P. (2010) 10 SCC 677.

In contrast, on behalf of official respondents, it has been submitted that in view of the provisions of Service Regulations of 1984, the Mandi Parishad is fully competent to recruit any person through deputation and the assertion of the petitioner of writ petition no. 1043 (SB) of 1995 and similar other petitions contrary to the above has no substance. As regard the absorption of eight Assistant Engineers, the Mandi Parishad wrote letters to the State Government and the State Government granted approval for absorption of those eight persons in the services of the Mandi Parishad vide letters dated 14.9.1995 and 19.10.1995. After obtaining the approval from the state Government, the matter was placed before the Board in its 72nd Meeting dated 19.9.1995 and the Board approved the proposal for absorption of said eight Engineers and in compliance thereof, those eight persons were issued appointment letters and consequent thereto, they joined as such and all those eight persons were absorbed in the services of the Mandi Parishad. Clarifying the position, it has been submitted that before absorption of the aforesaid Engineers, prior approval was also taken from the State Government though it was not mandatory in view of the Regulation 10(3) of the Service Regulation, 1984 but after the decision of the Board dated 19.9.1995, the State Government imposed a ban vide order dated 3.11.1995 on the aforesaid decision but the same was lifted vide order dated 14.9.1998. Therefore, in view of the above and in view of the provisions laid down in the Service Regulations, the Mandi Parishad is fully empowered to fill any post by taking any person on deputation either by direct recruitment or by promotion, therefore, after taking those persons on deputation, they were absorbed as such.

Elaborating his submission, Sri N.C.Mehrotra, Counsel for the Mandi Parishad submitted that the matter of deputation and absorption was further considered by the Board in its 87th Meeting dated 25.6.1999 vide item no. 10 whereby clear guidelines were laid down regarding the persons taken on deputation against the direct recruit post and it was further resolved that if any person is taken on deputation, he shall not be absorbed/merged in the services of the Mandi Parishad.

After absorption of the aforesaid Engineers, a seniority list dated 30.7.1997 was published by which they were given seniority from the date of absorption. Giving of seniority from the date of absorption was questioned before the Public Services Tribunal claiming that services rendered by them in their parent departments on the post of Assistant Engineers as also in the Mandi Parishad be directed to be counted for the purposes of determining seniority.

As regard to the passing of the judgment dated 30.4.1999 by the Tribunal, it is submitted that the sole question which was to be decided was whether the seniority list dated 30.7.1997 was legally maintainable or not. Therefore, the Tribunal has wrongly interpreted the Service Regulation of 1984 and wrongly held that there is no other mode of recruitment recognized by the Service Regulation except Regulation 12,13 and 18.

It has also been pointed that petitioner A.K.Kapoor has also wrongly interpreted the provisions of Section 26-F(i) and (2) of the Mandi Adhiniyam, 1964.The said Act was enacted in the year 1964 and in exercise of the powers conferred under Section 26-X of the Act, the Service Regulations were framed in the year 1984. After coming into force of Service Regulation, appointment, if any, is to be made under the provisions of Service Regulations and Section-26F has no applicability.

Learned Counsel for the Mandi Parishad lastly submitted that out of eight persons, three persons are no longer in the establishment of Mandi Parishad, Lucknow and there are only five persons left. He has also pointed out that these five persons are still working in the Mandi Parishad after their merger. He also informed that after merger of these persons in Mandi Parishad, their lien in the parent department has stood terminated. The present set of litigation before this Court started way back in the year 1999 and since then 15 long years have elapsed and as such equity is also in their favour as any order repatriating to them would mean ouster from services as they have lost their lien in the parent department.

Sri Sandeep Dixit, Counsel for the private respondents in few writ petitions, while adopting the arguments advanced by the Counsel for the official respondents added that the private respondents were taken on deputation after due selection and also after taking No objection Certificate from their parent department. Since deputationists have been absorbed on the posts of Dy. Director (Construction), the allegations as raised by the petitioners have got no relevance so far as the dispute raised in the present writ petition is concerned. Further, after the interim order having been modified by this Court on 15.10.1999, there was no legal impediment in the way of the competent authority to prepare the seniority list. Consequently, the Director of the Mandi Parishad was pleased to appoint a committee in compliance of this Court to prepare the seniority list and the tentative seniority list was circulated.

Sri Sandeep Dixit next contended that in view of the ban having been lifted and the order dated 3.11.1995 having lost its operation and efficacy the resolution of the Board dated 19.9.1995 becomes operative in full force resulting into that the appointment of the petitioner on the post of Deputy Director (Construction) stands upheld w.e.f. 19.9.1995.

On the strength of the decisions rendered in Union of India vs. Kuldeep Singh Parmar and others (2003) 9 SCC 472 and S.I.Roop Lal and another vs. Lt. Governor to Chief Secretary, Delhi and others; (2001) 1 SCC 644, it has been submitted that the Tribunal has rightly directed for counting of the past services rendered in the parent department as also in the Mandi Parishad for determining the seniority.

Before deciding the controversy, it would be relevant to point out that Mr S.S.Parmar, one of the petitioners in Writ Petition No. 1051 (SB) of 1999 has been allocated State of Uttarakhand and is no longer in services of Mandi Parishad, Lucknow. Therefore, his writ petition is dismissed. Similarly, Fakhre Alam, who has also come on deputation, and has been arrayed as one of the respondents in some of the writ petitions, had attained the age of superannuation during pendency of writ petitions. Furthermore, Sri K.K.Singh, who is also one of the respondents in some of the writ petitions, went back to his parent department i.e. Irrigation way back in the year 2002. Now, there are only five deputationists, who have been absorbed in the Mandi Parishad.

As far as Writ Petition No.312 (SB) of 1999 filed by one Narendra Kumar and Raj Krishi Utpadan Mandi Parishad Takniki Sangh is concerned, it appears that the petitioner-Union, who has filed the instant writ petition, has not annexed any resolution of its Members to file the instant writ petition and in absence of such authority, this type of writ petition cannot be preferred by the petitioner-Union, irrespective of the fact, whether it is registered or not, because if the authority is given to the petitioner-Association by its Members, then it will create estoppel on their part to file another writ petition for the very same relief, if this writ petition, preferred by the present petitioner-Association, is dismissed. No such authority has been given by the members of the Association and there is no document to this effect having been annexed alongwith memo of the writ petition. In these circumstances and for the reasons recorded hereinafter, the writ petition is liable to be dismissed.

Ram Chandra Chaudhary, petitioner of writ petition no. 1815(SB) of 1999 has claimed promotion on the post of Assistant Engineer (Civil) with retrospective effect from 1.5.1994, the date on which he had completed 10 years' service on the post of Sangarak (computor) and to determine his seniority accordingly. There is no dispute to the fact that the initial appointment of the petitioner is on the post of Computer in the year 1984. Under the Service Regulations, 1984, the source of recruitment to the post of Assistant Engineer is 50% through direct recruitment and 50% by promotion from feeding cadre. The feeding cadre for promotion to the post of Assistant Engineer is Junior Engineer and the other feeding cadre is 'Naksha Navees' [Maanchitrak]. We would like to clarify that from the Regulations it comes out that a person who has completed three years' service on the post of Naksha Navees, becomes entitle for promotion to the post of 'Sangrak[Computor] and if such promoted person completes ten years' further service on the post of Computor, then he is considered for promotion to the post of Assistant Engineer.

Likewise, learned Counsel for the petitioners is unable to point out before this Court that there are Rules or Regulations of the Association/Union specifically authorizing it to initiate the legal proceedings on behalf of its Members, so that any order passed by the Court in such proceedings, will be binding on its Members, and therefore, also the petitioner-Association has no locus-standi to file this writ petition.

It would be significant to point out that in exercise of powers conferred by Section 26-X of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964, the State Agriculture Produce Markets Board framed Service Regulations, known as Uttar Pradesh Agriculture Markets Board (Officers & Staff Establishment) Regulation, 1984. Regulation 2(e) of the Service Regulations defines "Employee" and it means every person appointed on whole time basis in classes A,B,C, and D mentioned in regulation 5, whether on contract basis, on deputation or otherwise but does not include persons employed on daily wages, work charges and on part-time basis. Chapter II, Regulation 4 provides that the strength of the officers and staff and of each category of posts therein shall be such as may be determined by the Board from time to time. Regulation 10 deals with the source of recruitment and reads as under:-

10(1) "Provided that the posts of Director and Additional Director (Administration) shall be filled by deputation.

Note: XXXXX

(2)(a) All the posts in Class A except the post of Director and Additional Director (Administration) shall be filled by promotion.

(b) 50 percent posts in Class B shall be filled by promotion and 50 percent by direct recruitment.

(c ) xxxx

(d) xxxx

(e) xxxx

(3) Any post required to be filled by direct recruitment or promotion may in the discretion of the Board, be filled by taking persons on deputation."

Thus in view of the aforesaid provisions, it is amply clear that the Mandi Parishad is empowered to recruit any person through deputation. We also find force in the submissions advanced by the Counsel for the Mandi Parishad that after enforcement of Service Regulations, 1984, appointment, promotion and deputation is to be governed by the said Service Regulations. There is no dispute to the fact that persons were taken on deputation after being granted No objection Certificate by their parent departments. They were merged in the borrowing department after due approval of the State Government. It is another thing that the State Government put a ban on its decision but later on, it lifted the ban.

It is also relevant to point out that the absorbed persons approached the Tribunal when their past services rendered in the parent department on the post of Assistant Engineer and the period rendered in Mandi Parishad was not counted for the purposes of seniority and therefore, they prayed for re-determination of seniority. In Paragraph 12 of the judgment the Tribunal has observed that " I have to decide the claim petition whether the seniority list (30.7.1997) has been properly prepared or not and is legally maintainable or not.". Therefore, while examining the said question, the Tribunal fell into error in observing that there is no other mode of recruitment recognized by the Service Regulation except Regulation 12,13 and 18. This observation is totally uncalled for. Further, as a matter of fact, in the present set of writ petitions, the Mandi Parishad has exercised its discretion under the provision of Regulation 10(3), as indicated above.

We find force in the submissions advanced by the Mandi Parishad and on behalf of private respondents that there is no illegality in the judgment of the Tribunal whereby it has directed the Department to prepare the fresh seniority list after counting the past services rendered by the erstwhile deputationists. Our view is fortified by the decisions rendered in Kuldeep Singh Parmar's case and Roop Lal's case [supra] wherein it has been observed that denial of counting past service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Article 14 and 16 of the Constitution.

We would like to clarify that against the judgment and order dated 30.4.1999 passed by the Tribunal, Mandi Parishad has not filed any writ petition perhaps for the reason that the Mandi Parishad wanted to play the role of an impartial employer in the inter-se dispute between its employees and does not want to give an impression that it is espousing the cause of a particular group of employees against another group of its own employees. Moreover, this Court in writ petition no. 843(SB) of 1999; A.K.Kapoor and others vs. State of U.P. and others, after considering overall aspects of the matter, vide order dated 15.10.1999 directed the Mandi Parishad to determine the seniority but the seniority list so prepared shall not be finalized until further orders of this Hon'ble Court. We are informed that in compliance of the order of this Court, the seniority list has been finalized but the same has not been given effect in view of the directions of this Hon'ble Court.

In view of the above discussions, Writ Petition No. 843(SB) of 1999, Writ Petition No. 1087(SB) of 1999, Writ Petition No. 1088(SB) of 1999 and Writ Petition No. 1267(SB) of 1999, preferred against the judgment of the Tribunal are hereby dismissed. However, it is clarified that since Sri S.S.Parmar, who is also one of the writ petitioner in writ petition no. 1087 of 1999 and Writ Petition No. 1267 of 1999, has been allocated to the State of Uttarakhand, therefore, the aforesaid directions will not be applicable upon him.

In writ petition no. 1092 (SB) of 1999, the order dated 3.4.1998 has been challenged. It appears from the record that the said order was passed pursuant to an interim order dated 23.2.1998 of the Tribunal passed in Claim Petition No. 1866 of 1997, which was later on stayed by this Court in Writ Petition No. 3710 (SB) of 1998, Shiv Bahadur vs. State of U.P. and others. However, the said writ petition was dismissed as infructuous on 19.9.1999. Furthermore, the interim order dated 23.2.1998 against which the said writ petition was filed, has merged into the final judgment and order dated 30.4.1999 passed by the Tribunal. Since we have already held that there is no infirmity or illegality in the judgment, this writ petition stands disposed of accordingly.

Since the appointment and absorption of deputationists in the Mandi Parishad is an exceptional appointment in the exceptional circumstances as provided in the Act and as such the same is protected. Our view is strengthened by a decision of the Apex Court rendered in Arun Kumar and others vs. Union of India and others; (2007)5 SCC 580. In these circumstances, the case laws relied upon by the petitioners are of no avail to him.

Even assuming that the assertion of the petitioners has little force and we proceed to quash the order of repatriation, then it will have an effect of ousting the deputationists from service as neither they will be the employees of the Mandi Parishad nor they would be accepted by their parent department in view of termination of their lien. It may be noted that in the case of Surendra Singh Gaur Versus State of Madhya Pradesh and others; (2006) 10 SCC 214, on which reliance has been placed by the Counsel for the private respondent, the Apex Court has held that once a person has been absorbed in another department and he has lost his 'lien' in the parent department, the parent department cannot be given a direction to take back the employee, whose 'lien' has been terminated. Thus equity is also in favour of private respondents/deputationists, who have been absorbed in Mandi Parishad. In these circumstances, writ petition No. 1043 of 1995, writ petition no. 311 (SB) of 1999 and Writ Petition No. 16 (SB) of 1999 are hereby dismissed. Since the above writ petitions have been dismissed, consequently writ petition no. 1815(SB) of 1999 is also dismissed. For the reasons disclosed in the preceding paragraphs, writ petition no. 312 of (SB) 1999 is also dismissed.

In Writ Petition No. 953 (SB) of 1999, petitioner is seeking appointment on the post of Deputy Director, Construction as regular and substantive in view of 72nd Board Meeting dated 19.9.1995 and they may be provided the status and responsibility attached to the post of Deputy Director, Construction and accordingly, seniority list to the post of Deputy Director Construction may be prepared. Petitioner has also sought quashing of the order dated 21.10.1997 by which the charge to the post of Depty Director, Construction was taken back and the petitioner was reverted to the post of Assistant Engineers in view of the order passed in writ petition no. 39 (SB) of 1998. Since the writ petition no. 39 (SB) of 1998 filed earlier against the interim order dated 23.12.1997, has merged into the final order dated 30.4.1999 passed by the Tribunal, therefore, writ petition no. 39 of 1998 was also dismissed. In these circumstances, prayer no. 4 claimed in the present writ petition has become infructuous. As the petitioners and other Engineers were posted as Deputy Director Construction and later on, they were reverted to the post of Assistant Engineer, therefore, their matter be considered as reversion was invalid and bad in the eyes of law. Writ Petition No. 953 of 1999 (SB) and Writ Petition No. 1051 of 1999 (SB) stands disposed of accordingly.

Dated: 31st October, 2013         [Dr Saitsh Chandra, J.]     [ Rajiv Sharma,J]
 
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