Allahabad High Court
Raj Bahadur Singh And Others vs State Of U.P.Thru Principal Secretary & ... on 10 January, 2014
Bench: Rajes Kumar, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 7114 of 2013 Petitioner :- Raj Bahadur Singh And Others Respondent :- State Of U.P.Thru Principal Secretary & Ors. Counsel for Petitioner :- Swarn Kumar Srivastava,Anil Kumar Srivastava Counsel for Respondent :- C.S.C.,Sourabh Pathak,V.P.Nag,Vikas Budhwar Hon'ble Rajes Kumar,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Delivered by Hon'ble M.C. Tripathi,J.) Heard Sri T. P. Singh, learned Senior Advocate alongwith Sri Anil Kumar Srivastava and Sri Swarn Kumar Srivastava, learned counsels for the petitioners, Sri Yogendra Kumar Yadav, learned Standing Counsel, appearing for respondent nos. 1, 2 & 3 and Sri Vikash Budhwar, appearing for respondent nos. 4 5.
Parties have exchanged their affidavits with the consent of learned counsels for the parties, the writ petition is finally decided at the admission stage itself. The petitioners have field the present writ the petition with following prayers:-
"(i) issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 21.08.2012 whereby the respondent no.4 has been given the charge of Chief Engineer Minor Irrigation Department as well as the order dated 30.06.2012 where by the respondent nos. 4 and 5 have been given promotion to the post of Superintending Engineer by completely ignoring the provisions contained under U.P. Services of Engineers (Minor Irrigation Department Rules 1991, true copies whereof are contained in Annexure-1 and 2 respectively to the writ petition.
(ii)Issue a writ, order or direction in the nature of mandamus commanding the respondent-State Government not to treat the respondent nos. 4 and 5 to have been merged in the Minor Irrigation Department (Engineering Cadre) without amendment of Departmental Service Rules 1991 in respect of their merger and not to give any benefit to the respondent nos. 4 and 5 till then.
(iii)Issue further a writ, order or direction in the nature of mandamus commanding the respondent State Government to stop the respondent no.4 on the post of Officiating Chief Engineer, Minor Irrigation Department U.P., Lucknow and respondent no.5 on the post of Superintending Engineer, Minor Irrigation Department till their merger in the Minor Irrigation Department (Engineering Cadre) is decided after amendment in the Departmental Service Rules 1991.
Brief facts given rise to this writ petition are as follows:-
That the State Government had created Minor Irrigation Department in the year 1966. A large number of persons had been appointed as Assistant Engineers on ad-hoc basis in different years prior to the year 1981. In order to regularize them the U.P. Public Service Commission had advertised 56 vacancies vide advertisement dated 19.06.1982 and result was declared on 21.09.1984. In order of merit, names of petitioners find place at serial no. 1, 3, 9, 20, and 19 respectively. It also appears that meanwhile Regularization Rules had been framed and the case of the ad-hoc Assistant Engineers working in the Minor Irrigation Department came to be considered by the Government and in this regard the State Government had passed order of regularization on 03.12.1985.
That the Minor Irrigation Department was already existing in the State of Uttar Pradesh to take care of irrigation facilities to smaller farmer at lower level.
That in order to boost the facilitate research in the research wing in the Planning Department a Minor irrigation Cell was created vide Government order dated 11.02.1980 alongwith requisite number of posts which included-
(I)One post of Subject Specialist in the pay scale of Rs. 1400-1800/-
(II)One post of Civil Engineer now Senior Research Officer in the pay scale of Rs. 800-1450/-
(III)Three posts of Research Officers (in the Discipline of Agriculture Civil and Mechanical Engineering) in the pay scale of Rs. 550-1200/-
That in furtherance of creation of above cell in the Planning Department vacancies on the post of Research Officers where advertised through U.P. Public Service Commission, were the Respondent No. 4 and 5 were selected and vide Government order dated 24.05.1983 they were appointed on substantive basis on the post of Research Officer in the pay scale of Rs. 850-1720/-, which has been revised from time to time.
That in a very short spell Minor Irrigation Cell of the Planning Department showed its worth. The Chief Engineer, Minor Irrigation Department, U.P. considering success of Minor Irrigation Cell created in the Planning Department, thus requested the Government to allow merger of Minor Irrigation Cell with the Minor Irrigation Department.
It is pertinent to mention that respondent no.2 i.e. Chief Engineer, Minor Irrigation Department, U.P. had wrote a letter to respondent no.1, the Principal Secretary, Minor Irrigation Department, U.P. on 18.04.1990 recommending that existing staffs of Minor Irrigation Cell may be merged in the Minor Irrigation Department alongwith its staff, namely, two Research Officer i.e. respondent nos. 4 and 5 and because they were appointed through U.P. Public Service Commission, they shall also be given due seniority of the merger in the Minor Irrigation Department. On the basis of the aforementioned recommendation, the State Government has passed an order dated 04.01.1991, whereby the Minor Irrigation Cell of Planning Department had been merged into the Minor Irrigation Department alongiwth sanctioned strength and working staffs. The Government Order defines appointment in the substantive capacity in the Minor Irrigation Cell were directed to give seniority from the date of substantive appointment in the parent department alongwith officers, who were substantively appointed in the same order of recruitment in Minor Irrigation Department. The copy of the Government Order dated 04.01.1991 is on record through a counter affidavit field on behalf of respondent nos.4 and 5 as C.A.-I. It also reveals that thereafter on 29.05.1991 another Government Order was issued whereby the answering respondent nos. 4 and 5 were absorbed in the Minor Irrigation Department. The following posts have been transferred in the Minor Irrigation Department vide Government Order dated 04.01.1991:-
Sl.No. Name of Post No. of Post Name of working Officers/employees Pay Scale 1 2 3 4 5 Gazetted 1 Subject Expert One Vacant Rs.3700-125- 4700-15-5000 2 Senior Research Officer One Vacant Rs. 3000-100-3500-125-4500 3 Research Officer Three 1 Sri P. R. Chaurasiya
2. Sri R. C. Pal
3. Vacant Rs. 2200-75-2800-n-jks&40-2040 Non-Gazetted 4 Stenographer Two Vacant Rs. 1200-30-1560-n-jks&40-2040 5 Draftsman One Vacant Do 6 Typist One Sri Vishnu Kumar Rs. 950-20-1150-n-jks&25-1500 7 Operator/Assistant Three
1. Sri Ram-Shanker Sharma
2. Vacant
3. Vacant Rs. 750-12-870-n-jks&14-940 8 Peon Two
1. Sri Devi Dutt Joshi
2. Vacant Rs. 750-12-870-n-jks&14-940 A bare perusal of the Government Order dated 04.01.1991 and the subsequent order dated 29.05.1991 reveals that employees who were appointed under the approval of Public Service Commission on their present post or the persons, who were regularized under Regularization Rules, shall be given substantive appointment in the Minor Irrigation Department with seniority since the date of their substantive appointment in their parent department i.e. Minor Irrigation Cell. The Government order dated 29.05.1991 further clarified that the seniority would be given from the date of their initial appointment in the Minor Irrigation Cell. The Government order dated 29.05.1991 further provided that seniority of the staff be considered and decided in accordance with Government order dated 04.01.1991 and the Government orders issued by the personnel department from time to time. Therefore, it is clear that at the relevant point of time there were no rules in existence, hence absorption and merger of the department was done as per Government orders issued from time to time and there where no requirement of any amendment in the Rules as apparently there were no Rules, in existence.
It reveals although the Government did not pass any formal order for change of designation in anticipation of approval of the State Government for change of designation and Respondent Nos. 4 and 5 prayed Government for approving the change of designation and it had also communicated to the Government that from the existing staff of the Minor Irrigation Department, Executive Engineer and Superintending Engineer have already been posted against the post of Senior Research Officer and Subject Specialist, respectively. On 02.07.1996 the Administrating Department has also clearly specified therein that seniority is to be assigned to the Respondent Nos.4 and 5 from the date of their appointment.
That on 16.11.1996 the U.P. Public Service Commission also granted approval in regard to the amalgamation /merger of the said post in the Irrigation Department and accordingly His Excellency The Governor also accorded approval on 06.12.1997 regarding absorption of the Respondent No. 4 and 5 in the Irrigation Department and finally vide Government order dated 08.12.1997 designation of the posts of Subject Specialist, Senior Research Officer and Research Officer were changed to Superintending Engineer, Executive Engineer and Assistant Engineer, Minor Irrigation Department and their seniority were required to be determined against the Assistant Engineer of the requirement year 1982-83 in terms of Government order dated 04.01.1991 and 29.05.1991.
In view of the Government order dated 04.01.1991 and 29.05.1991, the respondent nos. 4 and 5 have been granted seniority amongst the Assistant Engineers in Minor Irrigation Department since 1982-83. It is further clarified at this stage that respondent nos. 4 and 5 were selected by the U.P. Public Service Commission on substantive basis, and were appointed as research officer in Minor Irrigation Cell in the planning department in the scale of Rs. 850-1720 on 24.05.1983. It is also apparent from the record of respondent no.4 that by order No. 3576/62-2-98-2/4(69)/94 dated 09.06.1998 he had been confirmed as Assistant Engineer in the department, the same has been brought in the record through as C.A-4 of the State counter affidavit.
It is also clear from the record that seniority list of the department of the year 1998 was cancelled and seniority list of the year 1996 was revived vide notification No. V.I.P.-6/62-2-2003-2/4(118)/94 dated 05.03.2003, by which seniority was given since the selection year 1982-83 and, subsequently, the order dated 05.03.2003 had been cancelled by the subsequent order dated 04.05.2003.
All the seniority list of the department were cancelled and by office memorandum No. 2583/62-2-2005-2/5(12)/2004 dated 11.07.2005 provisional seniority list was published, in which objections were invited from all persons concerned and, thereafter, by office memorandum No. 3366/62-2-2005-2/5(12)/2004 dated 30.08.2005 final seniority list was issued. Against the seniority list of 2005 a writ petition No. 18657 of 1999-(Devendra Nath Shukla & Another Vs. State of U.P.) was filed and the Division Bench of this Court vide order dated 29.09.2005 had dismissed the writ petition. The Division Bench while dismissing the writ petition had clearly held that undoubtedly, the seniority once settled, cannot be disturbed after a lapse of several years. In the instant case, the seniority had always been under challenge either before this Court or Tribunal. In none of the cases, all the necessary parties had been impleaded. While deciding the issue of seniority, it is not open for the Court or Tribunal to grant relief against a person, who is not a party and whose seniority is under challenge. To appreciate the present controversy it would be appropriate to quote the relevant portion of the order dated 29.09.2005 passed in the aforesaid writ petition, which is as follows:-
"Undoubtedly the seniority once settled cannot be disturbed after a lapse of several years. In the instant case, the seniority had always been under challenge either before this Court or Tribunal. In none of the cases, all the necessary parties had been impleaded. While deciding the issue of seniority, it is not open for the Court or Tribunal to grant a relief against an person who is not a party and whose seniority is under challenge. A Full Bench of this Court in Farhat Hussain Azad Vs. State of U.P. & Ors., (2005) 1 UPLBEC 474, which was delivered by one of us (Dr. Justice B. S. Chauhan), held that ad hoc appointee, if regularised, can not claim the seniority from the date of initial appointment on ad-hoc basis unless it has been made following the procedure prescribed by law, placing reliance upon large number of judgments of the Hon'ble Supreme Court including the judgment in Direct Recruit Class II Engineering Officers Association Vs. State of Maharastra, AIR 1990 SC 1907, Shri T.P. Singh may be right to a certain extent that persons regularised with effect from 03.12.1985 could not claim seniority prior to that date but examining this issue would amount to a futile exercise, as we have already held that petitioners cannot claim seniority over and above the said respondents who had been appointed in substantive capacity by way of regularisation prior to them and if no relief can be granted to them, examining the said issue would be a futile exercise. (Vide Dr. Rai S. Bahadur Vs. Governing Body of the Nalanda College Bihar Sharif & Ors., AIR 1962 SC 1210; Kumari Chitra Ghosh Vs. Union of India & Ors., AIR 1970 SC 35; Dr. N. C. Singhal Vs. Union of India & Ors., 1980 SC 1255 and Khalid Hussain Vs. Commissioner & Secretary to the Government of Tamil Nadu Health Department & Ors., AIR 1987 SC 2074).
In view of the above, we do not find any force in the petition. It is accordingly dismissed."
It would also be appropriate to mention that while considering the objections at the time of finalization of the seniority list, the Principal Secretary of the Department had considered each and every objections and vide order dated 30.08.2005 had finalized / settled the seniority. The said Government Order dated 30.08.2005 has also been brought on record through annexure no.6 of writ petition. It is also relevant to mention at this stage that the main objections which had been filed against the respondent nos. 4 and 5, which is mentioned as item number 'X' (page 59 of the writ petition) of the order dated 30.05.2005 is being quoted below:-
"Jh ih0 vkj0 pkSjfl;k ,oa Jh vkj0 lh0 iky dh izFke fu;qfDr fu;kstu foHkkx ds vUos"k.k ,oa iz;ksx izHkkx ds y?kq flapkbZ dks"Bd uked ;kstuk esa 'kks/k vf/kdkjh ds in ij 24-5-83 dks gqbZ Fkh tks iw.kZr;k fu;kstu foHkkx ds iz'kklfud fu;a=.k esa FkkA fu;kstu foHkkx }kjk vf/k"Bku esa deh dk fu.kZ; djrs gq, fuxZr foKfIr fnukad 04-01-91 }kjk mDr dks"Bd dks y?kq flapkbZ foHkkx esa LFkkukUrfjr fd;s tkus ds vkns'k fn;s x;sA mijksDr 'kklukns'k esa ;g Hkh funsZ'k fn;k x;k Fkk fd fu;kstu foHkkx ls LFkkukUrfjr dkfeZdksa dks muds iSrs`d foHkkx esa tks ekSfyd fu;qfDr dh frfFk fu/kkZfjr gS mlh frfFk ls u;s foHkkx esa mudh fu;fer fu;qfDr ekurs gq, mudk lafoyh;u djus rFkk vkilh T;s"Brk fu/kkZj.k dh dk;Zokgh dh tk;A vkesyuhdj.k fu;ekoyh 1991 ds vUrxZr foHkkx esa lsok;kstu dh frfFk ls vkesfyr fd;k tk;] c'krsZ og ewy foHkkx esa igys ls fu;fer fu;qDr jgsa gksaA 'kklukns'k fnukad 6-12-97 }kjk mDr nksuksa dkfeZdksa dks 24-5-83 ls fu;qDr ekurs gq, mudh T;s"Brk fu/kkZfjr dh x;h] tks fd fu;e fo:) gSA vkesyhdj.k esa yksd lsok vk;ksx dh dksbZ Hkwfedk ugh jgrh gS] cfYd dkfeZd foHkkx dh jgrh gS] tks fd ugh fd;k x;kA bl izdkaj mDr nksuksa dkfeZdksa dks T;s"Brk 1997 ls fn;k tkuk pkfg,A mDr nksuks dkfeZd Jh pkSjfl;k ,oa Jh iky dks mRrj izns'k vfHk;a=.k lsok (y?kq flapkbZ foHkkx) fu;ekoyh] 1991 o 'kklukns'k fnukad 29-5-91 ds rgr mRrj izns'k vfHk;ark lsok y?kq flapkbZ foHkkx dk lnL; ugh cuk;k tk ldrk vkSj u gh mUgsa vkesyu fu;ekoyh] 1991 ds rgr vkesfyr fd;k tk ldrk gSA T;s"Brk fu;ekoyh@lsok fu;ekoyh fdlh Hkh izdkj lafoyh;u dh vuqefr ughs nsrh gSA 'kklukns'k fnukad 06-12-97 vfu;fer@voS/kkfud@ fujLr ;ksX; gSA Jh pkSjfl;k ,oa Jh iky dks o"kZ 1996 esa fuxZr T;s"Brk lwph esa LFkku ikus ;ksX; ugh le>k x;k FkkA Jh pkSjfl;k ,oa Jh iky us Hkh vius izdj.k ls lEcfU/kr rF;ksa dk foLrkj ls mYys[k djrs gq, vius izdj.k dks nks lsok laoxZ ds lafofy;u tks eq[; vfHk;Urk y?kq flpkbZ ds vuqjks/k ij iz'kklfud fu.kZ; rFkk vfuok;Z :i ls gqvk gS] crkrs gq, viuh T;s"Brk o"kZ 1982&83 esa gLrkUrj.k dh fu/kkZfjr lsok 'krksZ ds vuqlkj fu/kkZfjr djus vkSj vufUre T;s"Brk lwph ds dzekad 18 ,oa 19 ij gh vfUre T;s"Brk lwph esa ;Fkkor~ fu/kkZfjr fd;s tkus dk vuqjks/k fd;k gSA"
The objections against the fixation of the seniority of respondent nos. 4 and 5 had been considered by the Principal Secretary of the Department in order dated 30.05.2005 and the relevant portion is quoted below:-
"Jh izrhd jatu pkSjfl;k ,oa Jh jke pj.k iky dh rSukrh fu;kstu foHkkx ds vUrxZr xfBr y?kq flapkbZ izdks"B esa yksd lsok vk;ksx m0 iz0 }kjk o"kZ 1982&83 esa p;fur fd;s tkus ds mijkUr fnukad 24 ebZ 1983 dk 'kks/k vf/kdkjh ds in ij gqbZ FkhA bl izdkj Jh pkSjfl;k ,oa Jh iky 24 ebZ 1983 ls lsok ds fu;fer lnL; gks x;s FksA y?kq flapkbZ izdks"B dk dk;Z ik;yV ;kstukvksa ds ek/;e ls y/kq flapkbZ ds {ks= esa uohu rduhfd;ksa dk ijh{k.k ,oa fodkl djuk gS rFkk bl izdks"B ds leLr jktif=r in ;Fkk 'kks/k vf/kdkjh ofj"B 'kks/k vf/kdkjh rFkk fo"k; fo'ks"kK vfHk;U=.k ds in gSaA bl izdks"B }kjk de ykxr ds NksVs ck/kksa (psd MSe) dk fuekZ.k] gkMZM~ze e'khu] fLizadyj ,oa fM~zi] flapkbZ bR;kfn ij fd;s x;s lQyrkiw.kZ ijh{k.kksa dks ns[krs eq[; vfHk;Urk] y0 fla0 us o"kZ 1985 esa bl izdks"B dks y/kq flpkbZ foHkkx ds fy, vR;Ur mi;ksxh ,oa vko';d crkrs gq, 'kklu ds fu;kstu foHkkx ls] bls y?kq flapkbZ foHkkx dks gLrkUrfjr djus dk vuqjks/k fd;kA eq[; vfHk;Urk ds izLrko ij 'kklu Lrj ij fu;kstu foHkkx y?kq flapkbZ foHkkx (rr~le; {ks=h; fodkl foHkkx) }kjk vkilh lgefr rFkk dkfeZd foHkkx ds ijke'kZ ds mijkUr fu;kstu foHkkx ds 'kklukns'k la[;k 3@35&1&91&4@31(1)@86 fnukad 4 tuojh] 1991 }kjk fu;kstu foHkkx dk mDr izdks"B e; in ,oa in /kkjdksa ds y?kq flapkbZ foHkkx esa gLrkUrfjr gks x;kA mDr 'kklukns'k esa izdks"B esa dk;Zjr dkfeZdksa ds gLrkUrj.k dh lsok 'krZ fuEukuqlkj fu/kkZfjr dh x;h %& ^^;g lqfuf'pr dj fy;k tk;s fd tks vf/kdkjh @deZpkjh vius orZeku in ij yksd lsok vk;ksx ls vuqeksfnr gSa ;k fofu;ferhdj.k fu;ekoyh ds rgr fofu;fer gSa] mUgsa ml o"kZ ds y?kq flapkbZ foHkkx ds vuqeksfnr vf/kdkfj;ksa@deZpkfj;ksa ds lkFk ekSfyd fu;qfDr dh frfFk ls T;s"Brk iznku dj nh tk;ss] ftl o"kZ dh fjfDr esa os vius orZeku in ij vk;ksx ls vuqeksfnr gSa vFkok fofu;ferhdj.k fu;ekoyh ds rgr fofu;fer gSA mi;qZDr inksa ds in/kkjdksa ds u;s l`ftr leku inksa ij mlh frfFk ls lafoy;u djus rFkk mu deZpkfj;ksa dh ijLij T;s"Brk fu/kkZfjr djus dh fu;ekuqlkj dk;Zokgh dh tk;sA** mDr ls Li"V gS fd y?kq flapkbZ izdks"B ds in y?kq flapkbZ foHkkx esa mlh frfFk ls uohu inksa dh HkkaWfr l`ftr ekus tkus Fks ftl frfFk ls ;s fu;kstu foHkkx esa l`ftr gq, FksA fu;kstu foHkkx ds mDr vkns'k esa Li"V :i ls ;g vafdr gS fd y?kq flapkbZ ds c<+rs gq, vkdkj ,oa Li:i rFkk u;s ;kstukvksa dh lQyrkvksa dks n`f"Vxr j[krs gq, ;g fu.kZ; fy;k x;k gS fd fodkl vUos'k.k ,oa iz;ksx izHkkx }kjk lapkfyr y?kq flapkbZ izdks"B uked ;kstuk dks y?kq flapkbZ foHkkx dks lkSaik tk;sA mi;qZDr fooj.k ls Li"V gS fd fu;kstu foHkkx ds vUrxZr l`ftr y?kq flapkbZ izdks"B dk y?kq flapkbZ foHkkx esa gLrkUrfjr fd;s tkus dk iz'kklfud fu.kZ; eq[; vfHk;Urk] y?kq flapkbZ foHkkx }kjk ekaxs tkus ds mijkar mPp Js.kh dk izfrQy izkIr djus gsrq tufgr esa ,oa dkfeZd foHkkx ds ijke'kZ ls iwoZ fu/kkZfjr 'krksZ ds v/khu fd;k x;k rFkk Jh pkSjfl;k ,oa Jh iky vfuok;Z gLrkukUrj.k ds rgr y?kq flapkbZ foHkkx esa vk;s gSA mDr izdks"B fu;kstu foHkkx }kjk vf/k"Bkku esa deh djus ds fu.kZ; ds QyLo:i y?kq flapkbZ foHkkx esa gLrkUrfjr ugha gqvk gS cfYd eq[; vfHk;Urk] y?kq flapkbZ foHkkx ds vuqjks/k ij tufgr ,oa iz'kklfud fgr esa gLrkUrfjr fd;k x;k gSA {ks=h; fodkl foHkkx ds 'kklukns'k la[;k&1824@54&2&1904 (4) @78 fnukad 29 ebZ] 1991 }kjk fu;kstu foHkkx ds mi;qZDr vkns'k esa of.kZr 'krksZ dks Lohdkjrs gq, mDr izdks"B dks e; in ,oa in /kkjdksa ds y?kq flapkbZ foHkkx esa lek;ksftr fd;k x;k ftlesa Li"V :i ls ;g mYys[k gS fd dk;Zjr dkfeZdksa dh T;s"Brk fu;kstu foHkkx ds mDr vkns'kksa vuqlkj fu/kkZfjr dh tk;sxhA mDr 'kklukns'kksa esa of.kZr lsok 'krksZ dks iw.kZ djus rFkk y?kq flapkbZ izdks"B ds leLr jktif=r laoxZ ;Fkk 'kks/k vf/kdkjh ofj"B 'kks/k vf/kdkjh rFkk fo"k; fo'ks"kK vfHk;U=.k laoxZ dk gksus vkSj 'kks/k vf/kdkjh ,oa lgk;d vfHk;Urk ds inksa dh vgZrk,a rFkk HkrhZ dk Jksr ,d gh gksus ds dkj.k mDr izdks"B ds leLr jktif=r vfHk;U=.k laoxZ dks y?kq flapkbZ foHkkx ds jktif=r vfHk;U=.k laoxZ esa lafoyhu djus dk fu.kZ; ysdj yksd lsok vk;ksx m0 iz0 ds vuqeksnuksijkUr ,oa dkfeZd foHkkx ds ijke'kZ ds mijkUr 'kklukns'k la[;k&4982@62&2&97&2@4 (118)@94 fnukad 6 fnlEcj] 1997 }kjk y?kq flapkbZ izdks"B ds lEiw.kZ jktif=r vfHk;U=.k laoxZ dks y?kq flapkbZ foHkkx ds jktif=r vfHk;U=.k laoxZ esa lafoyhu djrs gq, bl izdks"B ds vUrxZr fo"k; fo'ks"kK] ofj"B 'kks/k vf/kdkjh vkSj 'kks/k vf/kdkfj;ksa ds inksa dks dze'k% v/kh{k.k vfHk;Urk] vf/k'kklh vfHk;Urk ,oa lgk;d vfHk;Urk ds Lohd`r inksa ij dk;Zjr Jh izrhd jatu pkSjfl;k ,oa Jh jkepj.k iky dks lgk;d vfHk;Urk laoxZ esa lafoyhu djus ds dk;Zdkjh vkns'k fuxZr fd;s x;sA mDr gsrq yksd lsok vk;ksx dh vuqefr fu;ekuqlkj vko';d Fkh D;ksafd nksuksa gh laoxksZ esa HkrhZ dk Jksr yksd lsok vk;ksx ds ek/;e ls gSA bl izdkj Jh pkSjfl;k ,oa Jh iky mDr fu.kZ;ksa ds dkj.k vfuok;Z gLrkukUrj.k ds QyLo:i y?kq flapkbZ foHkkx esa vk;s gSa vkSj mudk izdj.k nks lsok laoxksZ ds lafoyh;u dk izdj.k gS u fd NVuh 'kqnk vFkok ljIyl dkfeZdksa ds lek;kstu dkA 'kkldh; fgr esas ljdkjh lsodksa dh lsok 'krksZ dks fofu;fer djus gsrq lsok laoxksZ dks lafoyhu djus] u;s laoxksZ dk l`tu djus] fdlh laoxZ dks lekIr djus bR;kfn gsrq 'kklu dks vko';d vf/kdkj izkIr gSA T;s"Brk fu;ekoyh 1991 ds izLrj&4(N) esa lsok fu;ekoyh dks fuEukuqlkj ifjHkkf"kr fd;k x;k gS%& ^^lsok fu;ekoyh dk rkRi;Z lafo/kku ds vuqPNsn 309 ds ijUrqd ds v/khu cuk;h x;h lsok fu;ekoyh ls gS vkSj tgkaW ,slh lsok fu;ekoyh u gks ogkaW lqlaxr lsok esa fu;qDr O;fDr;ksa dh HkrhZ vkSj lsok 'krksZ dks fofu;fer djus ds fy, ljdkj }kjk tkjh fd;s x;s dk;Zikyd vuqns'kksa ls gS** Jh pkSjfl;k ,oa Jh iky ds izdj.k esa vkns'k fnukad 6-12-97 dk;Zikyd vkns'k gS rFkk mlh ds vuqlkj mudh lsok 'krsZ fu/kkZfjr gksxh vkSj blhfy;s Jh pkSjfl;k ,oa Jh iky dks o"kZ 82&83 esa T;s"Brk nh x;h gSA vr% vkns'k fnukad 6-12-97 iw.kZr% oS/kkfud ,oa fu;ekuqlkj gSA mYys[kuh; gS fd o"kZ 1996 dh T;s"Brk lwph fuxZr djrs le; y?kq flapkbZ izdks"B ds lsok laoxZ rFkk y?kq flapkbZ foHkkx ds vfHkU;=.k lsok laoxZ dk lafoyh;u ugha gqvk FkkA ftlds dkj.k Jh pkSjfl;k ,oa Jh iky dks o"kZ 1996 dh T;s"Brk lwph esa LFkku ugh fn;k tk ldk FkkA 'kklu ds dk;kZy; Kki la[;k&lh0,e0&221@62&2&2001&2@4 (22)@94 fnukad 26-11-2001 esa Jh pkSjfl;k ,oa iky ds lEcU/k esa] 'kklukns'k fnukad 04 tuojh 1991] 29 ebZ 1991 rFkk 06 fnlEcj 1997 dk laKku u fy;s tkus ds dkj.k xyr mYys[k gks x;k FkkA blds ifjizs{; esa dk;kZy; vkns'k@foKfIr la[;k&oh0vkbZ0ih0&67@ 62&2&2003@4 (118)@94 fnukad 05 ekpZ] 2003 }kjk Jh pkSjfl;k ,oa Jh iky dks o"kZ 1996 dh T;s"Brk lwph esa o"kZ 82&83 esa dze la[;k&46v ,oa 46c ij T;s"Brk nh x;h FkhA fdUrq ek0 mPp U;k;ky;] bykgkckn [k.M ihB] y[kum esa nk;j ;kfpdk la[;k&1663(,l-ch-)@2002 xksfoUn pUnz xqIrk cuke m0 iz0 jkT; o vU; esa ifjr vUrfje vkns'k fnukad 28-11-2002 ds n`f"Vxr mDr vkns'k fnukad 05 ekpZ] 2003 dks 'kklu ds dk;kZy; vkns'k@foKfIr la[;k&oh-vkbZ-ih-&67&1@62&2&2003& 2@4 (118)@94 fnukad 04-05-2003 }kjk fujLr dj fn;k x;k D;ksafd ek0 mPp U;k;ky; ds mDr varfje vkns'k fnukad 28-01-2002 }kjk o"kZ 1996 dh T;s"Brk lwph dks izksUufr ,oa vU; iz;kstu gsrq fuf"k) dj fn;k x;k FkkA mYys[kuh; gS fd 'kklukns'k fnukad 11 tqykbZ 2005 }kjk iwoZ esa fuxZr lHkh vufUre ,oa vfUre T;s"Brk lwfp;kaW fujLr dh tk pqdh gSa rFkk y?kq flapkbZ foHkkx ds lgk;d vfHk;arkvksa dh vufUre T;s"Brk lwph fuxZr dh xbZ gS] ftlesa Jh pkSjfl;k ,oa Jh iky dks mijksDr rF;ksa ds ifjizs{; esa dze'k% dzekad&18 ,oa 19 ij vofLFkr fd;k x;k gSA vr% mDr of.kZr rF;ksa ds izdk'k esa Jh pkSjfl;k ,oa Jh iky dks vufUre T;s"Brk lwph esa dzekad 18 ,oa 19 ij T;s"Brk fn, tkus ds fo:} mBk;h x;h vkifRr;kaW xzkg~; ugha gSa vkSj vLohdkj dh tkrh gSaaA** It is further relevant to mentioned that another writ petition No. 11134 of 2006 -(Arun Kumar Srivastava Vs. State of U.P. and others) had also been filed, challenging and disputing the seniority of Executive Engineers belonging to Minor Irrigation Department and also challenging the seniority list dated 30.08.2005. The Division Bench while considering each and every earlier controversy vide order dated 26.05.2011 has finally dismissed the writ petition. The relevant portion of the order dated 26.05.2011 are quoted below:-
"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 03.12.1985 against substantive vacancies prior to present petitioners who were appointed in substantive capacity on 18.06.1986 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 Deviendra 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."
It is also apparent from the averments mentioned in para 15 and 17 of the counter affidavit filed by the State, reveals that on the basis of seniority fixed on 30.08.2005, the respondent nos. 4 and 5 were promoted on the post of Executive Engineer vide order dated 05.09.2005 and again were promoted on the post of Superintending Engineer by order dated 30.06.2012. Sri Prateek Ranjan Chaurasiya being a senior most superintending Engineer had been given additional charge of Chief Engineer by order dated 21.08.2012, which is the impugned order in the present writ petition.
Admittedly, the petitioners had also filed writ petition No. 37608 of 2007-(R.B. Singh & Another Vs. State of U.P. and others). The same is pending. A counter affidavit has already been filed in the said writ petition.
Sri T.P. Singh, learned Senior Advocate appearing for the petitioners has submitted that in the present facts and circumstances of the case, the impugned order dated 21.08.2012, whereby the respondent no.4 has been given the charge of Chief Engineer, Minor Irrigation Department as well as the order dated 30.06.2012 whereby the respondent nos. 4 and 5 have been given promotion to the post of Superintending Engineer, is violation of the U.P. Services of Engineers (Minor Irrigation Department), Rules 1991 and the State Government could not treat the respondent nos. 4 and 5, whose services had been merged in the Minor Irrigation Department (Engineer Cadre) without amendment of Department Service Rules 1991, hence they are not entitled to any benefits.
Mr. T.P. Singh has also drawn our attention towards the provisions contained under U.P. Services of Engineers(Minor Irrigation Department) Rules 1991 (herein after referred as Rules), which has been brought on record through Annexure No.5 to the writ petition, which was notified on 4th October, 1991 and has placed reliance of different provisions of the said rules, and submitted, the merger and promotions of Respondent Nos. 4 and 5 are against the provisions of 3(h), 3(i) and 3(j), which are as follows:-
"3(h)- "members of the service:" means a person appointed in a substantive capacity under the provisions of these rules or of rules or orders in force prior to commencement of these rules to a post in the cadre of the service;
3(i)-"Service" means the Uttar Pradesh Service of Engineers (Minor Irrigation Department);
3(j)- "Substantive appointment" means an appointment not being an ad hoc appointment, on a post in the cadre of the service made after selection in accordance with the rules and if there are no rules, in accordance with procedure prescribed for the time being by executive instructions issued by the Government."
He also drawn our attention regarding provisions contained in part III which deals recruitments. Relevant is Rule 5(3), which is as follows:-
"(3)- Superintending Engineer- By promotion from amongst the substantively appointed Executive Engineers who have completed at least fifteen years total service (including at least six years as Executive Engineer on the first day of year of recruitment."
He also submitted that respondents are not entitled for promotion specially on the post of Executive Engineer, who had not been substantively appointed in the department and had not completed 15 years of service including at least six years as Executive Engineer, only would be entitled for the post of Superintendent Engineer. He has also contended that in the present matter while considering the claim of the respondent nos. 4 and 5 the department had acted contrary to the provisions of Rule 18, which provides the procedure for promotion through Selection Committee and also claim for benefits which has been given in favour of the respondent nos. 4 and 5, is also against the provisions of Rule 22 (Seniority), which states that "The seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Services Seniority Rules, 1991 as amended from time to time.
He also submitted that respondent nos. 4 and 5 do not belong to the service of Minor Irrigation Department and they had been imported from finance and they had been absorbed through executive orders, contrary to the Rules of 1991. Mr. T.P. Singh had also drawn our attention towards the office memorandum and notification dated 06.12.1997 issued by the Minor Irrigation and Rules Engineers Services Section 2, that after recommendation from Public Service Commission the aforesaid gazetted officers service cadre be merged in Minor Irrigation Department. The same is on record as C.A. 3 to the counter affidavit filed by the State. He has submitted that there were specific averments in paragraph 3 which provides that ^^mRrj izns'k vfHk;a=.k lsok (y?kq flapkbZ foHkkx) fu;ekoyh 1991 esa vko';d la'kks/ku dh dk;Zokgh i`Fkd ls dh tk;sxhA** Further he tried to convince to the Court that in response to the said Government Notification, till date, no amendment had been carried out in the Rules of 1991 and therefore, the whole absorption and further promotion is against the provisions of Rules 1991.
On the other hand Mr. Vikash Budhwar, learned counsel for the respondent nos. 4 and 5 has vehemently opposed the writ petition and claim set up by the petitioners and submitted that the Rules 1991 comes into force on 04.10.1991 having no retrospective effect. To appreciate his argument it would be appropriate to highlight the relevant provisions contained in Rules 1991. The same is quoted hereunder:-
"3(h)- 'members of the service' means a person appointed in a substantive capacity under the provisions of these rules or of rules or orders in force prior to commencement of these rules to a post in the cadre of the service;
3(j)- 'Substantive appointment' means an appointment not being an ad hoc appointment, on a post in the cadre of the service made after selection in accordance with the rules and if there are no rules, in accordance with procedure prescribed for the time being by executive instructions issued by the Government.'
4.Strength of the service: (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same have been passed under sub rule (1) be as given in the Appendix (A) Provided that:-
(1) The appointing authority may leave un-entitled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation.
(2) The Governor may create such additional temporary or permanent posts from time to time, as he may consider proper.' From the conjoint reading of Rules 3(h) and 3(j) it will reveal that member of service means a person appointed in substantive capacity under provisions of Rule 1991 or of the Rules or order in force prior to commencement of these Rules to the post in the cadre of service .... Further as per Rule 3(j) - Substantive appointment means an appointment not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the rules and if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.' As contended by Mr. Vikash Budhwar, that the aforementioned facts and circumstances it became apparently clear that at relevant point of time, there were no Rules for appointment, on substantive basis. An executive instruction or Government order would be held to be sufficient for substantive appointment and the person so appointed would hold as member of service. Here in present case admittedly the answering respondent nos. 4 and 5 were substantively appointed on the post of research officer in the scale of Rs. 850-1820/- after selection from Public Service Commission in the research wings of Minor Irrigation Cell of Planning Department. Subsequently respondent no.2 on 28.12.1985 requested for merger and transfer of entire department alongwith service of Minor Irrigation Cell of Planning Department in Minor Irrigation Department, and subsequently on 18.04.1990 a letter was issued for transfer of existing staff of Minor Irrigation Cell of planing Department in the Minor Irrigation Department for the purpose of absorption and merger. Thereafter, on 04.01.1991 the Government had issued an order for absorption of Minor Irrigation Cell of Planing Department to the Minor Irrigation Department with sanctioned strength and working staff. The Government had also clarified at that point of time that the appointment in substantive capacity in Minor Irrigation Cell were directed to give seniority from the date of their substantive appointment and, subsequently, vide order dated 29.05.1991 another Government order had been issued by which service of the answering respondent nos. 4 and 5 were absorbed in Minor Irrigation Department.
Mr. Vikash Budhwar, has also submitted that once the whole department has merged into the another department, the Government order in absence of any Rules would have every force and more over that merger was compulsory in nature, where the whole department merged in another department. Even the employees had not been given any option for proposed merger to another department. It is not the case were the answering respondent nos. 4 and 5 had been sent to the another department on deputation, but once the department itself had merged to the subsequent department and Government had issued notification by which the staff and assets of earstwhile office had been merged into the subsequent department, then the claim of the petitioners would not be justified and they cannot challenge the promotion of the petitioners. Moreover, the respondent nos. 4 and 5 had come and joined the service to the parent department in substantive capacity. The selection process had been conducted by the Public Service Commission and they were duly selected through proper channel and their claim could not be rejected merely on the dictates of the petitioners. They had every right to get all benefits in the subsequent department. He had also submitted that a bare perusal of orders dated 04.01.1991, 29.05.1991 and Government orders issued from time to time, it became clear that at relevant point of time, there were no Rules in existence, hence the absorption in the department was done as per Government orders issued from time to time and there were no requirement of any amendment in the Rules.
Mr. Y. K. Srivastava, learned Standing Counsel, who had put his appearance on behalf of respondent nos. 1, 2 and 3 has also opposed the writ petition and submitted that State has already filed very detailed counter affidavit and the same is on record and also accepted arguments made by Mr. Vikash Budhwar, counsel for respondent nos. 4 and 5 and submitted that petition is not liable to be admitted on any ground and admittedly the petitioners have not challenged the seniority, which has been fixed way back in the year 2005 and at this belated stage the same can not be challenged indirectly in the garb of promotional order and the present writ petition is also liable to be dismissed on the ground of latches.
We have perused the record and heard the rival submissions made by the counsel for the parties.
In the present case the petitioners have not challenged the initial Government order dated 06.01.1991 and 29.05.1991 by which the Government has decided for absorption and merger of the department and cadre and also making the seniority of respondent nos. 4 and 5 w.e.f. 24.05.1983 i.e. the date of their substantive appointment in the Minor Irrigation Cell of Planing Department. It also reveals that another writ petition No. 37608 of 2007 was instituted by the petitioner nos. 1 and 2 being Raj Bahadur Singh and another Vs. State of U.P. and others seeking following relief:-
"(i)issue a writ order or direction in the nature of Mandamus directing the opposite parties nos. 1 and 2 to place the names of the petitioners over and above the names of the opposite party no.2 who is shown at serial No. 14 of the seniority list and the names of the petitioners must be placed after the name of Sri Ram Ratan Prasad at serial no. 13 of the merit list.
(ii)issue any other writ, order or direction to set at naught the mischief inflicted on the petitioners may kindly be issued for doing complete justice.
(iii)to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case to which the petitioners ay be found entitled in law.
(iv)allow this writ petition with special costs in favour of the petitioners throughout.
It also reveals that in the said writ petition also the Government order dated 06.01.1991 and 29.05.1991 had not been challenged. The respondent nos. 4 and 5 admittedly appointed in the research wing of Minor Irritations Cell of Planing department in pursuance of the selection conducted by the Public Service Commission on 24.05.1983 in the pay scale of Rs. 850-1720/-, meaning there by, the post on which the respondent nos. 4 and 5 were held in Planing Department was of the same pay scale vis-a-vis post held by the petitioners in Minor Irrigation Department in the pay scale of Rs. 850-1720/. Even at the relevant point of time, the respondent nos. 4 and 5 were in the pay scale of Rs. 2200-4000/-, which was equivalent to the Assistant Engineer. It is also important to mention that the petitioners, neither in the present writ petition nor in the earlier writ petition No. 37608 of 2007 had challenged the final seniority list dated 30.08.2005. It is also apparent that various litigations took place, challenging the interse seniority. The Division Bench of this Court in two writ petitions, namely, writ petition No. 18657 of 1999 (Devendra Nath Shukla & Another Vs. State of U.P.) and writ petition No. 11134 of 2006 -(Arun Kumar Srivastava Vs. State of U.P. and others), after considering each and every aspects of the matter had rejected the claim of the petitioners and upheld the seniority as fixed by the State Government on 30.08.2005. Therefore, in absence of non-challenging of initial orders dated 06.01.1991 and 29.05.1991 (absorption and merger of the cadre) and seniority list dated 30.08.2005, the petitioners can not substantiate their claim, merely on the basis of challenging the present impugned orders dated 21.08.2012, by which the respondent no.4 had given charge of Chief Engineer in the Minor Irrigation Department as well as order dated 30.06.2012 whereby the respondent nos. 4 and 5 have been given promotion on the post of Superintending Engineer.
Once the Government has taken decision for merger of one department to another department and accordingly held that all the liability had been transferred to the subsequent department and also provided that how the seniority would be fixed, then, at this belated stage, whole controversy can not be reopened a fresh and, more over, once the State Government has exhaustively considered each and every aspects in full details, while fixing the seniority in the year 2005 itself, then the said seniority had attained finality and even in few cases the said seniority had also been challenged but no indulgence has been given by the two Division Bench of this Court and have not upset the seniority as stated above.
Mr. T.P. Singh, very lately has also brought into the notice through an affidavit that U.P. Services of Engineer (Minor Irrigation Department) Rules 1983 were also in existence and the absorption and merger order has been passed in favour of the respondent nos. 4 and 5 as Assistant Engineer also dehors of Rules, even though such pleadings have not been made in the writ petition. Contrary to his argument Mr. Vikash Budhwar has also submitted that Rules 1983 was not in existence, the same had never been notified. The said Rules were only draft Rules and the same had not given final shape for publication. He also submitted that Rules 1983 were nothing but an administrative order issued from time to time and, thus, the absorption of respondent nos. 4 and 5, so made were perfectly valid and it was always open to the employer to appoint, promote and absorb in any incumbent on the basis of apparent Rules, if provided. There were no rules in existence at relevant point of time.
The Hon'ble Apex Court in the case of Vinay Kumar Verma v. State of Bihar reported in 1990 (2) SCC page 647 has clearly held and observed that merger of cadre alongwith post can be made on the basis of Government orders. The relevant portion are quoted below:-
"..........11. We agree with the High Court that the appellants who were Assistant Engineers in Bihar Engineering Service, Class II, were not affected adversely by the impugned order in any manner. The District Engineers were merged in the cadre of the Executive Engineers alongwith the permanent posts which they were holding on the date of merger. The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers. The merger would thus operate to their advantage rather than disadvantage.
13.The third limb of the argument based on Rules 4(i) and 4(ii) of the 1939 Rules may now be examined. It is not disputed that the District Engineers were equivalent in rank to the Executive Engineers. The pay scales were also identical. The two equivalent and parallel cadres were operating in two different fields. To achieve administrative efficiency the State Government wanted to merge these cadres. The Executive Engineers were governed by the 1939 Rules which are statutory, whereas the District Engineers created by Government Order dated February 9, 1965 did not have any statutory framework. The statutory cadre of Executive Engineers has not been interfered with. It is operating under the 1939 Rules. The District Engineers are being merged with Executive Engineers and not vice versa. Rules 4(i) and 4(ii) of the 1939 Rules do not come into picture at all. It is not a question of appointment of an individual to the service. A group of persons similarly situated is sought to be brought into the service. The State Government can always increase the number of posts in the cadre of Executive Engineers. What is being done by the impugned order is that the incumbents of the posts are also being brought into the cadre along with the posts. The conditions of service of the existing members of service are not being altered or affected to their prejudice in any manner. In facts none of the Executive Engineers has challenged the impugned order. After merger the District Engineers would also be governed by the 1939 Rules. The impugned order being a policy decision is in a way supplemental to the Rules and does not go contrary to any of the provisions of the rule.........."
It is again relevant to mention that petitioners have neither challenged final fixation of seniority list dated 30.08.2005, even though the petitioner nos. 1 and 2 had already preferred writ petition No. 37608 of 2007, in said writ petition also they have not challenged the final seniority list dated 30.08.2005. Therefore, the present writ petition is not maintainable challenging the seniority/absorption of Respondent Nos. 4 and 5 as the same is not tenable in view of the following decisions of Hon'ble Apex Court, which clearly observe that no relief in the absence of challenge to the order can be granted.
The Hon'ble Apex Court in case of 2010 (15) SCC page 624 (New India Assurance Company Limited v. Vivek Cold Storage Private Limited) "3. The District Forum, by its order dated 28.02.1996, allowed the claim and directed that the appellant Insurance Company shall pay to the respondent the actual amount of money already paid by the respondent herein to its hirers (Owners of goods who had hired the storage facility and stored their goods) on account of loss of potatoes from the cold storage unit due to the occurrence of accident on 25.09.1990 "on production of case vouchers to the opposite party with one month".
4. The District Forum neither quantified the amount, nor granted interest, nor directed refund of the alleged excess premium. Apparently, the respondent was satisfied by this order because the respondent did not carry any appeal against the order of the District Forum. Aggrieved by this order, the appellant Insurance Company carried an appeal to the State Commission.
7.We are of the view that the State Commission had no jurisdiction to direct payment of Rs. 65,242 as refund of extra premium paid or Rs. 88,356 as interest thereupon or an amount of Rs.2,25,048 as interest on the award of claim of Rs. 2,38,147.46p. in an appeal filed by the insurer. The District Forum had directed payment of only the value of goods lost and nothing else. The respondent did not file any appeal against the non-grant of other claims. To this extent, the judgment of the State Commission was without jurisdiction. We are satisfied that granting of any amount beyond the amount of Rs. 2,38,147.46p. by the State Commission was without jurisdiction.
8.In the result, we set aside the orders of the National Commission and the State Commission, affirm the judgment of the District Forum and hold that the only amount payable to the respondent would be the aforesaid sum of Rs. 2,38,147.46p. towards loss of potatoes. Any amount paid in excess thereof shall be refunded by the respondent to the appellant Insurance Company within a period of eight weeks, failing which it shall carry interest at the rate of 12% per annum from this order to date of repayment.
2011 (14) SCC page 142 (Union Public Service Commission & Another v. Naseer-Ud-Din Wani & Ors.
"Relief beyond prayer, not permissible."
It is also relevant to abserve at this stage that seniority once settled cannot be subject matter of challenge after such a long span of years.
A Constitution Bench of the Hon'ble Supreme Court in Ramchandra Shanker Deodhar and others v. State of Maharashtra, AIR 1974 SC 259, considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period.
In R. S. Makashi v. I. M. Menon and Ors. AIR 1982 SC 101, the Apex Court considered the entire aspect of limitation, delay and laches in filing the writ petition. The Court also referred to its earlier judgment in State of Madhya Pradesh and another v. Bhailal Bhai etc.., etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court further considered the issue and held as under:
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time age would not be set-aside after the lapse of a number of years.................The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968..........We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government Resolution, should have been dismissed."
In K. R. Mudgal and others v. R.P. Singh and others, AIR 1986 SC 2086 and the Apex Court held as under :-
"Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him. Should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.............In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of latches."
In B. S. Bajwa v. State of Panjab and others, (1998) 2 SCC 523, the Hon'ble Apex Court has taken the same view observing as under :-
"It is well settled that in service matter, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition."
Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, it cannot be challenged and changed on any ground whatsoever.
It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. [Vide Aflatoon and others v. Lt. Governor, Delhi and others, AIR 1974 Sc 2077; State of Mysore v. V. K. Kangan and others. AIR 1975 SC 2190; Pt. Girdharan Prasad Missir v. State of Bihar and others, (1980) 2 SCC 83; H.D. Vora v. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh v. Union of India, AIR 1992 SC 1414; Ramjas Foundation and others v. Union of India and others. AIR 1993 SC 852; Ram Chand v. Union of India, (1994) 1 SCC 44; State of Maharashtra v. Digambar, AIR 1995 SC 1991; Municipal Corporation of Greater Bombay v. Industrial Development Investment V. (P.) Ltd. and others, (1996) 11 SCC 501; Padma v. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SCC 627; Hindustan Petroleum Corp. Ltd. v. Dolly Das. (1999) 4 SCC 450; Life Insurance Corporation of India v. Jyotish Chandra Biswas, (2000) 6 SCC 562; L. Muthu Kumar and another v. State of Tamil Nadu and others, (2000) 7 SCC 618; Municipal Council. Ahmednagar and another v. Shah Hyder Beig and others, AIR 2000 SC 671; and Inder Jit Gupta v. Union of India and others (2001) 6 SCC 637.
It is also well settled that right of merge cadre and create post is progerative of the State Policy. Admittedly, the power to create cadre is clearly provided under Rules 4 of U.P. Services of Engineer (Minor Irrigation Department) Rules 1991 and thus, in absence of enactment of 1991 which came into existence on 04.10.1991, it was always open to the Government to create post or merge the cadre. Even otherwise, no employee of office can have objection to merger/integration of cadre of different department on the ground that his promotional prospects would be adversely affected and, more over, once the respondent nos. 4 and 5 were similarly situated with the services of the petitioners and they were also selected from UPPSC, their educational qualifications are same and they were also in same pay scale and their duties were also similar, then the petitioners can not have any legal right to challenged the absorption of the respondents in present department.
In S.P. Shivprasad Pipal v. Union of India & Ors. 1998 (4) SCC page 598 The Hon'ble Apex Court has considered the merger/integration and also the scope of judicial review and held a decision to merger cadres is essentially a matter of policy, relevant paras are given below:-
"4. Under Article 309 of the Constitution the legislature is empowered to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The proviso to Article 309, however, empowers the President, in the case of services and posts in connection with the affairs of the Union, to make Rules regulating the recruitment and 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. The power to regulate recruitment and conditions of service is wide and would include the power to constitute a new cadre by merging certain existing cadres.
5. However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in case of State of Maharashtra v. Chandrakant Anant Kulkarni (SCR at p. 678) while considering the question of integration of government servants allotted to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are: In the matter of equation of posts, (1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:
(a) Nature and duties of a post;
(b) Powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged;
(c) The minimum qualifications, if any, prescribed for recruitment to the post and;
(d) the salary of the post.
This Court further observed that it is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of th court can operate.
15. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres.
19. However, it is possible that by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a policy decision. This Court in Union of India v. S.L. Dutta examined this contention. In S. L. Dutta case a change in the promotional policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni this Court held that a mere chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a change in the conditions of service."
It is further relevant to mentioned that consequent to formal merger, the respondent no.3 had given time bound pay scale of Rs. 3000-4500/- w.e.f 15th June, 1998. After completing five years of service, he also formally confirmed on the post of Assistant Engineer w.e.f. 09.06.1998. Earlier also, prior to final seniority dated 30.08.2005 the respondent nos. 4 and 5 always placed above the petitioners and at any point of time, neither they had challenged the time bound pay scale or their merger order or final seniority list dated 30.08.2005. Therefore, at this stage petitioners can not challenge the consequential promotional order dated 21.08.2012, where by the respondent no.4 has been given charge of Chief Engineer, Minor Irrigation Department as well as the order dated 30.06.2012 whereby respondent nos. 4 and 5 have been given promotion to the post of Superintending Engineer.
In view of the above, we do not find any force in the writ petition. It is accordingly dismissed.
Order Date :- 10.01.2014 VKG