Sri Niwas Pandey vs State Of U.P. And Others
2014 Latest Caselaw 1643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 35
 

 
Case :- WRIT - A No. - 8501 of 2008
 

 
Petitioner :- Sri Niwas Pandey
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- K.S. Rathor,Ravinder Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Attau Rahman Masoodi,J. 

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

By means of this writ petition, the petitioner has prayed for the following reliefs:

It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to direct the respondent no. 1 to transmit entire record of the case in hand before this Hon'ble Court and issue:

a. a writ, order or direction in the nature of certiorari quashing the column no. 4 of final seniority list dated 23.11.2007 passed by respondent no. 1.

b. a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to determine the seniority of the petitioner in accordance with the provisions of Rule 7 of U.P. Development Authorities Centralized Services Rules, 1985 by providing him the benefit of service rendered in Nagar Palika w.e.f. 11.1.1984.

c. issue a writ, order or direction in the nature of mandamus to direct the respondent no. 1 to place the petitioner in final seniority list of 19.04.1996 between Sl. No. 212 and 213.

d. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

e. Award cost of the petition to the petitioner."

My attention was invited to two orders dated 29th December, 1983 and the order dated 18th October, 1996. The order dated 29th December, 1983 is the order whereby the petitioner was appointed on the post of junior engineer in Nagar Palika on ad hoc basis in the regular pay scale. The petitioner while holding the post of junior engineer on ad hoc basis appears to have been transferred to Kanpur Development Authority in the same capacity, but the nature of petitioner's services even after transfer remained ad hoc by the very nature of his initial appointment. The validity of such a transfer is not the subject matter of dispute, although, transfer of an ad hoc employee should not have been made.

From the perusal of record, it is seen that the petitioner was absorbed under Rule 37(2) of the U.P. Development Authorities Centralized Services Rules 1985. By order dated 18th October, 1996, the conditions of absorption set out in the order dated 18th October, 1996 clearly provide that the petitioner shall not be given any benefit of past services nor the services rendered in the Nagar Palika shall be counted towards seniority. It is also noteworthy that under Rule 37(2), the absorption of an employee from Palika Centralised Services cannot be made once it is forbidden under Section 5-A (2) of the U.P. Urban Planning and Development Act, 1973 .

This order of absorption to the extent of these conditions provided therein was not challenged by the petitioner at any point of time before the year 2006. In 2008, the petitioner while filing this writ petition has virtually assailed the aforesaid conditions of the absorption order on the premise of the scope of Section 5-A of the U.P. Urban Planning and Development Act, 1973 read with Rule 7 of the U.P. Development Authorities Centralized Services Rules 1985. Section 5-A of the Act and Rule 7 of the Services Rules are reproduced below:

"Section 5-A. Creation of Centralised Services- (1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification create one or more 'Development Authorities Centralised Services for such posts, other than the posts mentioned in Sub-Section (1) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to and the terms and conditions of service of person appointed to such service.

(2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the U.P. Palika (Centralized) Services Rules, 1966. or serving on deputation, shall, unless he opts otherwise, be absorbed in such service.-

(a) finally, if he was already confirmed in his post, and

(b) provisionally. if he was holding temporary or officiating appointment.

(3) A person referred to in Sub-section (2) may, within three months1 from the creation of such Development Authorities Centralised Service communicate to the Government in the Housing Department, his option not to be absorbed in such Centralised Service. failing which he shall be, deemed to have opted for final or provisional. as the case may be, absorption in such Centralised Service.

(4) Suitability of a person absorbed provisionally, for final absorption In a Development Authorities Centralised Service, shall be examined In the manner prescribed and if found suitable he shall be absorbed finally.

(5) The services of an employee who opts against absorption or who is not found suitable for final absorption, shall stand determined and he shall without prejudice to his claim to any leave, pension, provident fund or gratuity which he would have been entitled to, be entitled to receive as compensation from the Development Authority concerned, an amount equal to-

(a) three months' salary, if he was a permanent employee:

(b) one month's salary, if he was a temporary employee.

Explanation.-For the purposes of this sub-section the term salary includes dearness allowance, personal pay and special pay. if any.

(6) It shall be lawful for the State Government or any officer authorised by it in this behalf, to transfer any person holding any post a Development Authorities Centralised Service from one Development Authority to another."

Rule 7. Seniority of finally absorbed officers and other Employees.- (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 of including the services rendered in a Development Authority, Nagar Mahapalika, Nagarpalika or improvement Trust on similar posts.

(2) In the case of persons having equal continuous length of service the person older in age shall be senior and in case the age of such persons is same the person drawing higher pay shall be senior.

The aforesaid Rule clearly makes a reference to Rule 28 of the Services Rules, which for ready reference is reproduced as under:

28. Seniority.- (1) Except as hereinafter provided, the seniority of persons I n 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 or 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.

(2) The seniority inter se of persons appointed directly on the result of any one selection, shall be the same as determined by the Commission or the Selection Committee, as the case may be:

Provided that a candidate required directly may lose his 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) Notwithstanding anything in sub-rule (1) the inter se seniority of persons appointed by direct recruitment and by promotion shall be determined from the date of joining the service in the case of direct recruits and from the date of continuous officiation in the case of promotees and where the date of continuous officiation of promotee and the date of joining of the direct recruit is the same, the persons appointed by promotion shall be treated as senior:

Provided that where appointments in any years of recruitment are made both by promotion and direct recruitment and the respective quota of the source is prescribed, the inter se seniority shall be determined by arranging the names in a combined list in accordance with Rule 17 in such manner that the prescribed percentage is maintained.

While examining the scope of aforesaid Rules in the context of Section 5-A of the Urban Planning and Development Act, 1973, I find that the contention of the petitioner to the effect that the adhoc services rendered by the petitioner prior to his absorption whether in Nagar Palika or Development Authority are liable to be computed for the purposes of seniority, to my mind, is a preposition unacceptable under law.

Section 5-A (2) of the Act clearly provides for absorption of a person serving on the post included in the services of Development Authorities and the said provision excludes the persons governed by U.P. Palika (Centralised) Service Rules, 1966 or the persons serving on deputation. The petitioner was clearly a member of Palika Centralised Services by virtue of his appointment vide order dated 19.12.1983 contained in annexure no. 1 to the writ petition. Therefore, it was impermissible under the aforesaid provision to absorb services of such an employee who was a member of Palika Centralised Services and was serving in the Development Authority on deputation.

Rule 7 of the Services Rules confers right to seniority only on those employees who are finally absorbed in the services under Sub-section 2 of Section 5-A of the Act. The petitioner was even not eligible for absorption under the aforesaid section for three reasons:

(a) firstly, the petitioner was a member of Palika Services.

(b) secondly, the petitioner was serving in the Development Authority on deputation.

(c) thirdly, the petitioner was holding the post on ad hoc basis and his absorption even if permissible would have been provisional absorption in terms of Clause-(b) of Rule 5-A (2) of the Act.

There is no mention of Rule 37 (2) of the Service Rules in Rule 7 for the purposes of determination of seniority. Even, Rule 37 (2) has been invoked contrary to the provisions of Section 5-A of the Act, therefore, the prayer made by the petitioner for computation of ad hoc services prior to the date of absorption order dated 18.10.1996 is misconceived and liable to be rejected. The petitioner is not entitled to the benefit of seniority within the scope of Rule 7 of the Service Rules at all.

The petitioner has not placed any documentary evidence on record to show that the services rendered by the petitioner were ever regularised prior to the issuance of order dated 18th October, 1996. In any case, the petitioner remained a member of Palika Centralised Services prior to the issuance of order dated 18th October, 1996, as such, any prayer for computation of his past ad hoc service for the purposes of seniority in the Development Authority from the initial date of appointment is clearly misconceived and devoid of merit.

In the result, the writ petition being devoid of merit is hereby dismissed.

Order Date :- 12.5.2014

Sanjeev

(Attau Rahman Masoodi,J.)