Allahabad High Court
Santosh Kumar And Another vs State Of U.P. And 7 Others on 13 September, 2018
Bench: B. Amit Sthalekar, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 39 Case :- WRIT - A No. - 44512 of 2017 Petitioner :- Santosh Kumar And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Rakesh Prasad Mishra,Ashok Khare,Sushil Kumar Srivastava Counsel for Respondent :- C.S.C.,Mahboob Ahmad Connected with Case :- WRIT - A No. - 36723 of 2017 Petitioner :- Sanjay Kumar Chaturvedi And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rakesh Prasad Mishra,Nand Lal Pandey Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 48107 of 2017 Petitioner :- Sanjay Kumar Chaturvedi And 3 Others Respondent :- State Of U.P. And 156 Others Counsel for Petitioner :- Rakesh Prasad Mishra,Nand Lal Pandey Counsel for Respondent :- C.S.C.,Mahboob Ahmad And Case :- WRIT - A No. - 49572 of 2017 Petitioner :- Abhay Shankar Dwivedi And 8 Otherrs Respondent :- U.P.Power Corporation Limited,Lucknow And 10 Others Counsel for Petitioner :- Sudhanshu Pandey,G.K. Singh Counsel for Respondent :- Mahboob Ahmad And Case :- WRIT - A No. - 14416 of 2017 Petitioner :- Shyam Gopal Saxena Respondent :- State Of U.P. And 10 Ors. Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Ayank Mishra And Case :- WRIT - A No. - 16125 of 2017 Petitioner :- Abhay Shankar Dwivedi And 4 Ors. Respondent :- U.P.P.C.L. And 4 Ors. Counsel for Petitioner :- Sudhanshu Pandey Counsel for Respondent :- Ayank Mishra And Case :- WRIT - A No. - 56779 of 2017 Petitioner :- Rahul Yadav And 6 Others Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Ashwani Kumar Yadav Counsel for Respondent :- C.S.C.,Mahboob Ahmad Hon'ble B. Amit Sthalekar,J.
Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble B. Amit Sthalekar,J)
1. The controversy involved in the above writ petitions is being stated to be identical, therefore, being decided by this common order, leading case being Writ petition no. 44512 of 2017.
2. The petitioners in the writ petition are seeking quashing of the tentative seniority list dated 28.8.2017 as well as the order dated 2.5.2017 whereby their representation against the seniority list has been rejected.
3. Briefly stated the case of the petitioners is that they were recruited as Junior Engineer (Electrical/Mechanical) by direct recruitment through a selection conducted by the Electricity Service Commission of the U.P. Power Corporation Ltd. They were given appointment by an order dated 30.12.2000 and the petitioners joined their posts accordingly. By an order dated 5.6.2012 they were also granted promotion from Junior Engineer (Electrical/Mechanical) to the post of Assistant Engineer (Electrical/Mechanical) under the 40% quota as well as 8.33% quota. It is further stated that on 5.5.2012, the respondents no. 5 to 12 along with several others were appointed through direct recruitment also conducted by the Electricity Service Commission as Assistant Engineer (Trainee). These Assistant Engineers (Trainee) were then sent for on-job training on 12.5.2012 and after successful completion of one year of training they also took a written examination and having qualified the same were appointed as Assistant Engineer (Electrical/Mechanical) vide order dated 17.1.2014.
4. The case of the petitioners is that the substantive appointment of the respondents no. 5 to 12, therefore, would be from 17.1.2014, but by issuing the impugned tentative seniority list these direct recruits, total 184 persons including the respondents no. 5 to 12 have been placed en masse senior to the petitioners, treating their date of substantive appointment as 5.5.2012. It is also stated that on 15.12.2016 a tentative seniority list of Assistant Engineers was notified showing the names of persons of the recruitment year 2010-11 and this seniority list did not include the names of the petitioners. Against this tentative seniority list two writ petitions, namely, Writ Petition No. 61497 of 2016 (Anoop Kumar Sinha and Ors. Vs State of U.P. and Ors.) and Writ Petition No. 15647 of 2017, (Neeraj Kumar and Ors. Vs. State of U.P. and Ors.) were filed. Writ Petition No. 61497 of 2017 was finally disposed of by the Court vide order dated 23.12.2016 with a direction that the objections which may have been filed by the petitioners therein against the said seniority list of 2010-11 be decided before making promotions to the post of Executive Engineer. It is stated that in pursuance of this direction the impugned order dated 2.5.2017 has been passed rejecting the representations of the petitioners herein. The other Writ Petition No. 15647 of 2017 was, however, dismissed as withdrawn with liberty to the petitioners to challenge the order dated 2.5.2017 which was passed subsequent to the filing of that writ petition.
5. The contention of the petitioners also is that in previous years the respondents have been assigning seniority to Assistant Engineer (Trainee) during the recruitment year 2000-01 from the date of their being appointed as Assistant Engineer with seniority beginning from 2001-02, thereby clearly showing that seniority was granted only after successful completion of training. Similar, practice has been followed with regard to grant of seniority of Assistant Engineer (Trainee) of the recruitment year 2003-04 from the date of their appointment as Assistant Engineer after completion of their training during the recruitment year 2005-06. The allegation, therefore, is that it is only this time in the case of the petitioners that the respondents have deviated from their previous practice and have framed the tentative seniority list in violation of Rules.
6. Reference has been made to the provisions of the amended Uttar Pradesh State Electricity Board Services of Engineers Regulations, 1970 (hereinafter referred to 'the Regulations, 1970') as well as the Uttar Pradesh State Electricity Board Servants Seniority Regulations 1998 (hereinafter referred to as 'the Regulations, 1998'). These regulations have been framed by the Uttar Pradesh Electricity Board in exercise of powers under Section 79 (c) of the Electricity (Supply) Act, 1948. For better appreciation of the case, the relevant extracts of the Regulations, 1970 are being reproduced here below :-
"3. Definitions. - In these Regulations, unless there is anything repugnant in the subject or context-
(1) .........
(2) .........
(3) .........
(4) 'Assistant Engineer' means an Assistant Engineer who may be appointed as such by the Chairman, it includes such other posts of equivalent status, as may be notified by the Board from time to time and included in the cadre;
(4-A) .........
(4-B) .........
(4-C) .........
(5) ............
(6) ...........
(7) ...........
(8) ...........
(9) ...........
(10) ..........
(11) .............
(12) ............
(13) 'Direct Recruitment' means recruitment made against a post in the cadre of the service under clause (a) of sub-regulation (1) of Regulation 5 of these Regulations;
(14) ............
(15) ............
(16) ...........
(17) ...........
(18) ...........
(19) ...........
(20) ..........
(21)...........
(22) ..........
(23) 'Member of the Service' means a person appointed in a substantive capacity under the provisions of these regulations and orders in force previous to the commencement of these regulations, to a post in the cadre of the service;
(24) ............
(25) ...........
(26) ..........
(27) ...........
(28) ...........
(29) ...........
(30) 'Trained Engineer' means a Trainee Engineer who after a course of successful Training under the Board is declared fit for appointment as an Assistant Engineer under the Board;
(31) ..........
(32) 'Year of Recruitment' means the period from 1st July of a year to the 30th June of next year.
(33) 'Cadre' means the strength of service of Engineers."
7. Part III of the Regulations, 1970 deals with Sources of Recruitment, Regulation 5 therein, reads as under:-
"5. (1) Initial recruitment to the service shall be made to the posts of Assistant Engineers in the following manner.
(a) By appointment from among 'Trained Engineers' 65-1/3%
(b) By promotion from amongst members of Junior Engineers Service in the Selection Grade in the manner prescribed in Appendix 'C' 33-1/3%
(c) By promotion from amongst the confirmed and qualified computers (Selection Grade) (E/M) in the manner prescribed in Appendix 'C' :
1-1/3% Provided that as between members of Junior Engineer and computer the vacancy shall be shared by them in the proportion of their respective cadre strength from time to time.
(2) Appointments to the other higher posts shall be made by promotion on the basis of selections which will be made in accordance with the procedure laid down in Appendix 'D'.
(3) Notwithstanding anything contained in these Regulations the Board may make appointments to the service, in relaxation of these Regulations, from among employees of Electricity Undertakings or similar organisations which have been taken over or which may, in future, be taken over by the Board or from among the merit position holders of Roorkee and Varanasi Universities and Indian Institute of Technology, Kanpur and such other Institution, as may be prescribed by the Board from time to time, on such terms and conditions as may be decided by them."
8. Part IV of the Regulations, 1970 deals with Qualifications, Regulation 9, therein, reads as under:-
"9. Age. - The age of candidates for selection as Trainee Engineer shall, on the 1st day of January of the year in which the selection is made, be not less than 21 years and more than 28 years :
Provided that-
(i) the maximum age limit shall, in the case of retrenched employees of the State Government, be greater by three years and in the case of the employees of the Board and candidates belonging to Scheduled Castes/Scheduled Tribes by five years;
(ii) if a candidate would have been entitled in respect of his age and other qualifications under these regulations to appear for the selection in any year in which no such selection was held, he shall be deemed to be entitled in respect of his age to appear at the next following selection;
(iii) no candidate shall be permitted to avail of more than four chances at a selection; and
(iv) the Chairman may relax the age-limit in favour of any candidate or class of candidates if he considers it to be necessary in the interest of fair dealing or in the public interest, but, where this is considered necessary, a provision must be inserted to this effect in the advertisement."
9. Part V of the Regulations, 1970 deals with Appointment, Probation and Confirmation, Regulation 14, 17, 19, 20 and 21 therein, read as under:-
"14. Appointing Authorities. - The appointing authorities of the members of Service shall be as follows :
Name of Post Appointing Authorities
1.
Asstt. Engineer Chairman
2. Asstt. Executive Engineer
3. Executive Engineer
4. Executive Engineer (Selection Grade)
5. Superintending Engineer
6. All Officers above the rank of S.E. Board Provided that no appointment henceforth to the post of Assistant Executive Engineer shall be made except where such appointment was due and is to be made effective from a date prior to 1.7.1979, but where an officer may already be working as Assistant Executive Engineer he will continue till such time as he is either placed in the higher scale of Senior Assistant Engineer or promoted to the post of regular Executive Engineer or otherwise moves out of the scale.
15...........
16..........
17. Appointment to the post of Assistant Engineer. -- (1) A person finally selected for appointment to the service as Assistant Engineer in the manner prescribed in these Regulations shall be appointed thereto by the appointing authority (unless he subsequently becomes disqualified for appointment) on the occurrence of a vacancy. The appointments shall be made in the same order in which the names appear in the combined waiting list prepared under Regulation 15.
(2) In case no approved candidate is available for such appointment on the list and it becomes essential to make appointment in the interest of the Board, a person who is eligible for appointment by promotion to the service under these Regulations, may be appointed, but such an appointment shall not be made for a period exceeding four months, without the specific approval of the Board.
(3) Assistant Engineers appointed on or after the date of issue of this notification under Regulation 17(1) except these Assistant Engineers whose date of Superannuation falls within a period of two years from the date of their appointment on the post of Assistant Engineer, shall be required to serve on first appointment as Assistant Engineer for a minimum period of first sixty calendar months (first five years of service) in Board's Large Thermal Power Stations (including Thermal Power stations of U.P. Rajya Vidyut Utpadan Nigam Ltd., and that the Assistant Engineers having degree in Industrial/Industrial & Production Engineering shall be required to serve at Large Thermal Power Stations throughout their service :
Provided that in each selection all such persons who are appointed on the post of Assistant Engineer by direct recruitment (Except Mechanical Graduates) the first 15 per cent of such candidates shall have to serve for the first five years of their service in Test & Commissioning Units under Transmission Organisation in shifts. Thereafter their next 3 years of service shall have to be completed in Board's Large Thermal Power Stations.
18. ..............
19. Seniority.-- The seniority of officers on their appointment to the service shall be determined as per U.P. Rajya Vidyut Parishad Sewak Jyesthata Niyamavali, 1998 as amended from time to time :
Provided that the inter se seniority of the Government Officers absorbed in the service of the Board while officiating in the cadre of the service, shall be the same as on the post held by them in the Government in a permanent/substantive capacity and in the case of those officers who were not permanent on any post at the time of absorption shall be the same as on the lower post held by them after regular selection in an officiating capacity.
20. Probation.--(1) Every candidate shall, on appointment to a post in the service in or against a substantive vacany, be place on probation for a period of two yeas from the date of taking over charge of the appointment :
Provided that the appointing authority may--
(a) for sufficient reasons extend the period of probation in individual cases by a further period not exceeding two years. Any such extension shall specify the exact date up to which the extension is granted but continuance in service beyond the date up to which the period of probation is extended would not, in the absence of a specific order to that effect, amount to regular appointment on the post so held by him;
(b) allow to count towards the period of probation continous service, if any, rendered in a officiating or temporary capacity or a post in the cadre of the service or in the cadre of an equivalent service of Engineers under the State Government.
(2) If it appears at any time, during or at the end of the period of probation or extended period of probation, that an officer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction he may be reverted to his substantive post if he has one under the Board, or his services may be dispensed with if he has none.
(3) A candidate whose services are dispensed with under sub-regulation (2) shall not be entitled to any compensation.
21. Confirmation.-- A person recruited under these regulations, shall be confirmed in his apppointment as per the U.P. State Electricity Board (Confirmation of Board's Employees) Regulations, 1995 as amended from time to time, if--
(a) he has passed the departmental examination prescribed by the Board from time to time;
(b) his integrity has been consistently certified; and
(c) he is found fit, in all other respects, for confirmation by the Board."
10. The Regulations, 1970 also contain Appendix-A, B, C, D, E,, F, G and H. For purposes of the present case, the relevant Appendix with which we are concerned is Appendix 'B' which prescribes the Procedure for Direct Recruitment for purposes of holding selection as contemplated under Clause (a) of sub-Regulation (1) of Regulation 5. Paragraphs 5, 7, 8, 9 ,10 ,11, 12, 13 of the Appendix-B read as under:-
"[5. The selection shall be made by a selection committee consisting of the following :
(a) An Ex-Chairman/member of the U.P. State Electricity Board will act as President of the Committee. In case of retired person the nomination will be made by the Chairman;
(b) One member of the Board to be nominated by the Chairman;
(c) One expert in the Field of Management to be nominated by the Chairman;
(d) One Chief Engineer who shall also act as Secretary of the committee to be nominated by the Chairman, U.P. State Electricity Board.]
6............
7. (1) All candidates will be required to satisfy minimum requirements of physical standards as prescribed in Regulation 13 and Appendix 'F'.
(2) The Board will arrange for medical examination of selected candidates by a Medical Board which shall send necessary certificates prescribed in Appendix F' testifying to the candidate's sound bearing and general physical fitness for rough outdoor work in the Operation and Maintenance Divisions/Units of the Board and to the fact that he bears on his body marks of successful vaccination.
8. Candidates who satisfy the provisions of Rule 7 above, shall have to undergo training for such period and on such terms as the Board may decide, including practical training. A candidate admitted to the training will have to execute a personal bond for Rs. 10,000 at the time of joining as A.E. (Trainee) together with a surety, who is solvent for not less than Rs. 10.000 and in proof of the same the bond should be supported by a solvency certificate from a Revenue Officer not below the rank of Tehsildar. for serving the Board on the terms and conditions set forth therein for at least three years from the date of his initial appointment on the post of A.E., after training, failing which the Bond will be forfeited to Board.
9. The facilities granted by the Board for training will be subject to the following conditions :
(i) that the progress of the trainee in his studies is satisfactory;
(ii) that the trainee gives security for refund of all payments made during the period of training in the event of his failing to qualify for appointment as Assistant Engineer, or for not executing the Board as specified in Rule 8 above or for failing to join the post offered at the end of the period of training.
10. During the period of training, a trainee will be governed by such rules, regulations and orders as may be prescribed from time to time and the performance of the trainee shall be evaluated regularly through quarterly test. If a trainee fails to pass three such consecutive quarterly tests, his services shall be liable to be terminated forthwith.
11. On completion of the training and before appointment as Assistant Engineer, a trainee will be required to pass a final test, as may be prescribed. He may also be required to sign a Service Agreement setting forth the terms and conditions of his appointment as may be prescribed.
12.If a trainee fails to qualify at the final test for appointment as Assistant Engineer, his period of training may be extended and he may be given one more chance to pass the final test for appointment as Assistant Engineer subject to a maximum period of training of two years, whereafter the services of the trainee shall be liable to be terminated forthwith.
13. A candidate will loose his seniority if he fails to qualify in the first test or tests."
11. Reference will also be necessary to the Regulations, 1998 which were notified on 24.2.1998 and were also framed in exercise of powers under Section 79 (c) of the Electricity (Supply) Act 1948. Regulation 2, 3, 4 (f) (h) and Para 8 of Part II of the Regulations, 1998 read as under:-
2. Application:
These regulations shall apply to all Board's Servants in respect of whose recruitment and conditions of service, regulations may be or have been made by the Board under section 79 (c) of the Electricity (Supply) Act, 1948.
3. Overriding Effect:
These regulations shall have effect notwithstanding anything to the contrary contained in any other service regulations made heretobefore.
4. Definitions:
In these regulations unless there is anything repugnant in the subject or context, the expression :-
(a) ...........
(b) ..........
(c) ..........
(d) .........
(e) .........
(f) "service" means the service in which the seniority of the members of the service has to be determined.
(g) .........
(h) "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 service regulations relating to that service.
(i) ..........
PART-II Determination of Seniority
5.........
6.........
7........
8.Seniority where appointments are made by promotion and Direct recruitment :
(1) Where according to the service regulations appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall subject to the provisions of the following sub-regulations, be determined from the date of the order of their substantive appointments and if two or more persons are appointment together, in the order in which their names are arranged in the appointment order;
Provided that if the appointment order specifies a particular backdate 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 issuance of the order.
Provided further that a candidate recruited 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.
(2) The seniority inter-se of persons appointed on the result of any one selection :-
(a) through direct recruitment shall be the same as it is shown in the merit list prepare by the commission or by the committee, as the case may be;
(b) by promotion shall be as determined in accordance with the principles laid down in regulation 6 or regulation 7 as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be in accordance with the quota prescribed for the two sources.
Illustrations :- (1) where the quota of promotees and direct recruits is in the proportion of 1:1 the seniority shall be in the following order:-
First --------------------------------Promotee Second --------------------------- Direct Recruit and so on.
(2) Where the said quota is in the proportion of 1:3 the seniority shall be in the following order :-
First ------------------------------Promotee Second to Fourth -------------Direct Recruit Fifth ----------------------------- Promotee Sixth to eight ------------------Direct Recruit and so on.
Provided that -
(i) where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down for seniority to subsequent year or years in which there are vacancies in accordance with the quota.
(ii) Where appointments from any source fall short of the prescribed quota and appointments against such unfilled vacancies are made in subsequent year or years the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made so however that their names shall be placed at the top followed by the names in the cyclic order of the other appointees;
(iii) where, in accordance with the services regulations the unfilled vacancies from any source could in the circumstances mentioned in the relevant service regulations be filled from the other source and appointments in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
12. Heard Sri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare for the petitioners, Shri H.N.Singh, learned Senior Counsel assisted by Sri Shantanu Pandey for the petitioners and Shri N.L. Pandey for the petitioners, Shri Manish Goyal, learned Addl. Advocate General assisted by Sri Abhishek Srivastava, Shri R.K. Ojha, learned Senior Counsel, Shri Ravi Kant, learned Senior Counsel, Sri Vijay Gautam and Shri Arvind Srivastava for the respondents in this bunch of cases and perused the records.
13. Sri Ashok Khare, learned Senior Counsel referring to the definition in Regulation 3 clause (30) of the Regulations, 1970 submitted that the 'Trained Engineer' as defined therein, means a Trainee Engineer who after a course of successful training under the Board is declared fit for appointment as an Assistant Engineer under the Board. This means that successfully qualifying the training was sine qua non for appointment as Assistant Engineer and unless a candidate, namely, an Assistant Engineer (Trainee) does not successfully complete the training he cannot be appointed as an Assistant Engineer and whenever an Assistant Engineer (Trainee) qualifies the training and is appointed as Assistant Engineer that would be the date of his substantive appointment.
14. The submission further is that under Clause 5 (1) of the Regulations, 1970, the source of recruitment to the post of Assistant Engineer is provided. The word used being Assistant Engineer does not mean the appointment as Assistant Engineer (Trainee) it means that though the initial appointment may be as an Assistant Engineer (Trainee) in the quota, as may be prescribed in Clause 5, but the actual appointment in service would only be as Assistant Engineer and not Assistant Engineer (Trainee).
15. He further submitted that the Assistant Engineer (Trainee) has to undergo a training as contemplated under Para- 8 of the Appendix-B, which includes practical training and a candidate admitted to training will have to execute a personal bond at the time of joining as Assistant Engineer (Trainee) together with a surety for serving the Board on the terms and conditions set forth therein for at least three years from the date of his initial appointment on the post of Assistant Engineer after training, failing which the bond will be forfeited to the Board.
16. Reference was also made to Para 10 of the Appendix-B, which provides that if a trainee fails to pass three consecutive quarterly tests, his services shall be liable to be terminated. He also referred to Para 11 to show that a trainee on completion of training and before appointment as Assistant Engineer, is also required to pass a final test, as may be prescribed and may be required to sign a Service Agreement setting forth the terms and conditions of his appointment.
17. Para 12 provides that if a trainee fails to qualify the final test for appointment as Assistant Engineer his period of training may be extended and he may be given one more chance to pass the final test for appointment as Assistant Engineer, subject to a maximum period of training of two years, whereafter, his services as trainee shall be liable to be terminated.
18. The submission, therefore, is that mere appointment as Assistant Engineer (Trainee) does not result in an appointment as Assistant Engineer unless the conditions prescribed in Appendix-B of the Regulations, 1970 are satisfied, and therefore, a substantive appointment would result only after a candidate is appointed as Assistant Engineer after successful completion of training as well as passing the final test. The submission is that the very fact that the candidate would be liable for termination of his service by the failure to qualify the training or to pass the final test itself means that his appointment as Assistant Engineer (Trainee) is not a substantive appointment.
19. Sri Khare has also sought to draw support from the language of Regulation 8 of the Regulations, 1998 which defines substantive appointment in Para 4 (h) to mean an appointment, not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with Service Regulations relating to that service. The learned Senior Counsel submits that the use of the term "made after selection" means that the selection contemplated here is not the one conducted by the Electricity Service Commission for the purposes of initial appointment as Assistant Engineer (Trainee) but rather the word "Selection" includes training as well as passing the final test as only then an Assistant Engineer (Trainee) can be said to be selected for appointment as Assistant Engineer and any other interpretation of the term would render the very definition of substantive appointment in Para 4 (h), totally redundant when read in the context of the mandatory requirements of Appendix-B.
20. Sri Khare has relied upon a Division Bench judgment of this court in 2008 (6) AWC 6474, Arun Kumar Saxena Vs. State of U.P. and others, wherein the court was examining the provisions of the U.P. Government Servants (Seniority) Rules, 1991. We may note at the outset, that there is no conflict among the counsel for the parties that the Rules of Seniority laid down in the U.P. Government Servant (Seniority) Rules, 1991 are pari-materia with the Regulations, 1998.
21. In our opinion, the judgement in the case of Arun Kumar Saxena (supra) does not address itself to the question as to what is substantive appointment, nor does it elucidate as to whether the selection contemplated is the selection held by the Electricity Service Commission or selection after completion and passing of the final test. Therefore, in our opinion, the said judgement has no application to the case of the petitioners.
22. The learned Senior Counsel for the petitioners next referred to the judgment of the Supreme Court in the case of Prafulla Kumar Swain Vs. Prakash Chand Mishra and Ors. and other connected civil appeals reported in 1993 Supp (3) SCC 181. In that case the service rules under consideration were those of the Orissa Forest Service Class-II Recruitment Rules, 1959.
23. The learned Senior Counsel also referred to the judgments of the Supreme Court in Haryana Power Generation Corporation Limited And Others Vs Harkesh Chand And Others, (2013) 2 SCC 29 and the judgment in Shitala Prasad Shukla Vs State of Uttar Pradesh, (1986) Supp 1 SCC 185. We shall deal with these judgments at a later stage.
24. Sri N.L. Pandey, learned counsel appearing for the petitioners in the two connected writ petitions involving identical questions has supported the submissions of Senior Counsel, Sri Ashok Khare, and also added that against the tentative seniority list dated 28.8.2017, the petitioners had submitted their representation/objections on 2.9.2017, Annexure-17 to the writ petition no. 48107 of 2017 but in the impugned order while issuing the final seniority list, there is no mention or consideration of the points raised by the petitioners in their representation. The final seniority list dated 28.9.2017, Annexure-18 to the writ petition no. 48107 of 2017 as well as the order dated 2.5.2017, Annexure-12 to Writ petition no. 36723 of 2017 rejecting their representation have been challenged.
25. Sri Manish Goyal, learned Additional Advocate General on the other hand has referred to the Regulations, 1998 and referring to Regulation 4 (h) which defines "substantive appointment" submitted that substantive appointment has been defined to mean an appointment not being an adhoc appointment on a post in the cadre of the service made after selection in accordance with the service regulations relating to that service. His submission is that the private respondents were not appointed on adhoc basis. Their initial order of appointment dated 5.5.2012 nowhere mentions their appointment to be adhoc. He further submitted that these respondents were selected by the Electricity Services Commission through a process of selection laid down for that purpose and therefore, their appointment w.e.f. 5.5.2012 would be deemed to be substantive appointment "made after selection in accordance with the service regulations". He then referred to the provisions of Regulation 8 and submitted that the words "substantive appointment" used therein would relate back to the substantive appointment made after selection through the Commission in terms of the regulations and where appointments are made both by promotion and direct recruitment, the seniority of persons appointed shall subject to the provisions of the sub-regulations of Rule 8 be determined from the date of the order of their substantive appointment.
26. He next referred to Regulation 19 of the Regulations, 1970 and submitted that the Regulations, 1970 had incorporated the provisions of the Regulations, 1998 as amended from time to time and it was provided that seniority of officers on their appointment to the service was to be determined as per the 1998 Regulations. He also laid stress on the proviso to Regulation 19 of 1970 Regulations and submitted that it was provided therein that the inter se seniority of Government Officers absorbed in the service of the Board while officiating in the cadre of service, shall be the same as on the post held by them in the Government in a permanent/substantive capacity and in the case of those officers who were not permanent on any post at the time of absorption shall be the same as on the lower post held by them after regular selection in an officiating capacity. The submission of the learned counsel, therefore, was that since the appointment order of the private respondents does not mention anywhere that their appointment was ad hoc or officiating, their appointment would be deemed to be permanent/substantive appointment in the service and that date would be the date for determining the inter se seniority.
27. Sri Manish Goyal also referred to Regulation 5(1) of the 1970 Regulations which deals with the sources of recruitment and submitted that there is only one cadre of Assistant Engineers and the Regulation 5 nowhere mentions any such cadre as Assistant Engineer (Trainee) and, therefore, the training required to be undergone by an Assistant Engineer (Trainee) was only a qualifying test and was an integral part of the initial appointment of the Assistant Engineer and upon successful completion of the period of training such Assistant Engineer (Trainee) would be termed as Assistant Engineer and therefore, the time undergone during training would count towards seniority.
28. The learned counsel then referred to the terms and conditions mentioned in the order of appointment of the direct recruit Assistant Engineer (Trainee) dated 5.5.2012 and submitted that an Assistant Engineer (Trainee) after his selection through the Electricity Service Commission is required to undergo a training of 12 months and on successful completion of such training would be considered eligible for appointment as Assistant Engineer on certain conditions. It was also provided that the period of training can also be extended and if the candidate completes the training to the satisfaction of the department and his appointment is made in continuation of his previous appointment as Assistant Engineer then the period spent during training would count towards grant of increment in his salary.
29. The conditions also provide that if the candidate did not qualify in three consecutive examinations then his services as Assistant Engineer (Trainee) would stand terminated forthwith. The second condition provides that during the period of training, the candidate would be entitled to minimum pay of Rs. 15,600/- in the Band-III scale of Rs. 15600-39100/- and he would also be entitled to the grade pay of Rs. 5,400/- and apart from salary he would also be entitled to dearness allowance and other emoluments as may be made available by the corporation from time to time. The third condition provided that after successful completion of training, the candidate would also have to appear at a final test and qualify the same. If he fails to qualify the final test in the first chance, the period of training can be extended to a maximum of two years and during this extended period the candidate would have one more chance to qualify the final test but if he fails to qualify even the second test or fails to take the test his services would be liable to be terminated forthwith.
30. Sri Manish Goyal referring to the three conditions prescribed in the order of appointment submitted that the very mention that the training completed in continuation from the date of initial appointment and the fact that it would be counted for purposes of grant of increments in salary, itself showed that the intention of the framers of the Regulation always was that the period of training would be an integral part of the appointment of the candidate as Assistant Engineer and when coupled with the fact that during this period he would be entitled to the minimum of pay with grade pay and benefits of dearness allowance and such emoluments as may be made available by the corporation from time to time, would leave no doubt that the period of training was intended to be a mere qualifying test for the transition of the candidate from Assistant Engineer (Trainee) to Assistant Engineer and that being so, such Assistant Engineer could not be denied the period spent in training to count towards seniority.
31. The learned Additional Advocate General has referred to the following judgments in support of his submissions.
2) 1991 AIR(SC) 1406, A.N. Sehgal and Ors. Vs. Raje Ram Sheoran and Ors.
3) (1984) 4 SCC 329, G.P. Doval and Ors. Vs. The Chief Secretary, Government of U.P. and Ors.
4) (1999) 8 SCC 287, Shri L. Chandrakishore Singh Vs. State of Manipur and Ors.
32. We shall take up these judgments for consideration at a later stage.
33. Sri Goyal also referred to the U.P. Government Servants (Seniority) Rules, 1991 and submitted that Rule 8 thereof is pari materia with Regulation 8 of the Regulations, 1998 and submitted that the only hiccup to an appointment being substantive or not is that such appointment should not be an adhoc appointment. He, therefore, submitted that neither the direct recruits nor the promotees were appointed on adhoc basis and therefore, the period of service after selection through the Electricity Service Commission would be a substantive appointment and the period thereafter spent during training would be a part and parcel of such appointment and could not be ignored while computing seniority.
34. Sri Arvind Srivastava, learned counsel for the respondents in the connected writ petition referred to the para 13 of Appendix-B of the Rules, 1970 and submitted that para 13 clearly states that a candidate will lose his seniority if he fails to qualify in the first test or tests and submitted that the language of para 13 can only be read one way, namely, that a person cannot be said to lose what he does not actually possess and, therefore, para 13 must be read in such a manner as to include the period of training while computing seniority otherwise the use of the words "the candidate will lose his seniority if he fails to qualify first test or tests." would become redundant and inconsequential. He has also referred to the judgment of the Supreme Court reported in (1998) 1 SCC 727, State of H.P Vs J.L. Sharma and Another and submitted that the appointment order of the direct recruit-private respondents herein, clearly mentions them as "on job" meaning that they are to be treated as in service Assistant Engineer (Trainee) from the date of their initial appointment soon after selection and therefore, the time spent during training of a direct recruit will have to be treated in service and be counted for purposes of determining the seniority of a direct recruit.
35. Reference has also been made to the judgment of the Supreme Court in (1997) 3 SCC 641, R.S Ajara and others Vs. State of Gujarat and others and (2001) 1 SCC 637, Ramesh Kumar Sharma Vs Rajasthan Civil Services. We shall deal with each of these judgments at a later stage in our order.
36. Sri Ravi Kant, learned Senior Counsel appearing for the respondents referring to Regulation 8 (1) and 8 (3) of the 1998 Regulations, submitted that training itself is not a selection but it is required for making the Assistant Engineer (Trainee) fit for the job once he is appointed as such and therefore, the date on which the Assistant Engineer (Trainee) is actually appointed is the date of his substantive appointment. Therefore, seniority will count from the date of the first appointment after selection through the Electricity Service Commission and not after completion of training.
37. The learned Senior Counsel also laid stress on the use of the words "on job" used in the appointment letter dated 5.5.2012 of the direct recruits and submitted that this itself is a pointer to the fact that the direct recruits were treated as already in service and not someone who would be treated in service only after completion of training and taking the final test. He further submitted that training itself is not a selection but only a qualifying test and the direct recruit who fails to qualify this training and the final test would stand terminated but a direct recruit who qualifies the training successfully and passes the final test would be deemed to be declared an Assistant Engineer and thereafter, he will not be called Assistant Engineer (Trainee) and therefore, the period spend during training which is completed successfully would inevitably have to count towards seniority. Reference was made to the following judgments of the Supreme Court :-
1) (2009) 16 SCC 379, Balwinder S. Dhillon Vs State of Punjab and others.
2) (2011) 3 SCC 267, Pawan Pratap Singh and others Vs Reevan Singh and others
3) (2014) 14 SCC 720, State of Uttar Pradesh and others Vs Ashok Kumar Srivastava and Another.
4) (2015) 11 SCC 80, Secretary, Minor Irrigation Deptt. & RDS Vs Narendra Kumar Tripathi
38. Sri Manish Goyal, learned Additional Advocate General also referred to the paragraphs 1, 2, 3 and 4 of the counter affidavit of the respondents no. 1 to 4 and submitted that out of 2439 posts of Assistant Engineer, 1228 posts fell in the category of direct recruits as per the quota fixed and 1211 posts fell in the category of promotions as per the quota prescribed in the 1970 Regulations as amended from time to time. As per Regulation 5 of the 1970 Regulations, the quota of the various categories as amended and as mentioned in para 16 of the counter affidavit is as under:-
"(i) Direct Recruitment 50.34%
(ii) Through Promotion from JE to ASSISTANT ENGINEER 40%.
(iii) During the course of service as JE if person acquires B.Tech degrees 8.33%
(iv) From Draughtsman/Computer 1.33%."
39. Sri Goyal further submitted that cumulative vacancies of the various years for which appointments were made through direct recruitment on 5.5.2012 are as under:-
Sr. No. Selection Year Cumulative Vacancies
1.
2008-09 107
2. 2009-10 184
3. 2010-11 275
4. 2011-12 305
40. It is submitted that the above chart takes into account the vacancies of the various years starting from 2008-09 to 2011-12. Referring to para 22 of the counter affidavit, the learned counsel submitted that the department had always taken the date of appointment on the post of Junior Engineer (Trainee) or Assistant Engineer (Trainee) as the date of the substantive appointment. It is also stated that the seniority list was further revised after the matter of reservation in promotion was struck down by the Supreme Court in Civil Appeal no. 2608 of 2011, Rajesh Kumar Vs. U.P. Power Corporation Ltd. and thereafter, the final seniority list has been issued strictly as per the 1998 Regulations.
41. The learned counsel for the petitioners on the other hand referring to the rejoinder affidavit particularly reply to para 16 of the counter affidavit submitted that the direct recruits respondents were appointed on 17.1.2014 after having successfully undergone the training period from 5.5.2012 to 17.1.2014 and therefore, their substantive appointment would be referable to 17.1.2014 in the recruitment year 2013-14 and the same cannot be claimed as pertaining to the recruitment year 2011-12.
42. We shall take up the judgments referred to by the respondents.
43. In the case of Direct Recruit Class II Engineering Officer's Association (hereinafter referred to as the 'Direct Recruit Class II'-Supra), the respondents laid considerable emphasis on the observations made by the Supreme Court in paragraph 13 and 47 of the judgment. Para 13 reads as under:-
"13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan's case was unsound and fit to be over-ruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbant nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. and others, (1980) 4 SCC 226, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others, (1989) Supp. 1 SCC 194, with which we are in agreement. In Narender Chadha and others v. Union of India and others, (1986) 2 SCC 157, the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."
44. Para 47 is a summation of the proposition of law laid down by the Supreme Court and reads as under:-
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final."
45. The thrust of the argument of the learned counsel for the respondents was that where the appointment had been made and the appointee had been selected through a process of selection and had continued in service for a long period of time as such, even in a case where the appointment was made in a stop gap or officiating manner, he would be entitled to count the period of service towards seniority. In our opinion, the appointment of the direct recruits in the present case was neither ad hoc nor stopgap nor officiating nor was it for a very long time nor contrary to Rules. The respondent direct recruits herein were in fact undergoing the mandatory training course for the prescribed period and were appointed as Assistant Engineer on successful completion of the same strictly as per Regulations, 1970.
46. In the case of G.P. Doval (supra), the court was considering as to what would constitute substantive appointment. In that case, it was held that though in the appointment order there was no recital as to whether such appointment had been made in a stop gap arrangement, nevertheless, what was stated was that the appointees will have to face the approval test of the Public Service Commission and in that context it was held that once the petitioners 1 and 2 and respondents 4, 5 and 6 therein came to be appointed in 1961 and their appointment was approved by the Public Service Commission and once the approval was granted, the same will relate back to the date of first appointment. The observations of para 15 are however, defining. In para 15, it was held that if there was no binding rule of seniority, length of continuous officiation is a valid principle of seniority. In that case it was held that even if the appointment is stop gap but the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, his past service will count towards seniority. It was held that if once a person appointed in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly, unless the rule to the contrary is made.
47. In A.N. Sehgal (supra), the Supreme Court held that so far as promotees were concerned, the seniority of approved or confirmed promotee should be counted from the date of either initial officiating promotion or continuous later officiation from the date of availability of cadre post. If no post is available till such date of the availability, the entire period of continuous officiation would be rendered fortuitous. The contention of the promotees that promotion would relate back retrospectively to the date of creation of the post and the appointment to the vacancy shall be with reference to the date of creation of the post was rejected by the Supreme Court as it would result in anomalies and render Rule 5(2) of the direct recruits surplusage. The relevant extract of the judgment reads as under:-
"..........Seniority of such approved or confirmed promotee should be counted from the date of either initial officiating promotion of continous later officiation from the date of availability of the cadre post, however, should be next below his senior promotee or the junior most of the preceding year of allotment within the quota. If no post is available till such date of the availability, the entire period of continuous officiation would be rendered fortuitous. The contention, therefore, that the promotion would relate back retrospectively to the date of creation of the post and the appointment to the vacancy shall be with reference to the date of the creation of the post, would result anomalies and render Rule 5(2) to the direct recruits surplusage."
48. In our opinion, the judgment of Direct Recruits II (supra), G.P. Doval (supra) and A.N. Sehgal (supra) have no application to the facts of the present case.
49. In L. Chandrakishore Singh (Supra), the Supreme Court in para 14 and 15 held as under:-
"14. Seniority itself based upon length of service is an acquired right of an employee which entitles him to be considered for further promotion. It is generally regulated by Service Rules. Such rules normally provide for determined seniority with reference to the date of appointment to the class, category and grade to which the appointment is made. It is determined only on the basis of the length of service. Such length of service may be on the basis of the difference of continuous officiation or on the basis of the difference of substantive appointment in the cadre or grade or service which may be reckoned from the date of confirmation on the basis of regularisation.
15. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval & Anr. vs. Chief Secretary, Government of U.P. & Ors. (1984) 4 SCC 329."
50. In our opinion, the above judgment also is of no application to the facts of the present case which is governed by its own set of rules.
51. Sri Arvind Srivastava, learned counsel for the respondents has placed reliance upon the judgment of the Supreme Court in Ramesh K Sharma (supra). Relevant extract of the judgment reads as under:-
"4..................The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stop-gap or fortuitous. In Baleshwar Dass vs. State of U.P. & Ors. (1980) 4 SCC 226, this Court held that when a person holds a post for an indefinite period especially for long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. Further if an appointment to the post is made by the proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity....................In the case in hand it is not disputed by Dr. Rajiv Dhawan, learned senior counsel appearing for the direct recruits/appellants that these private respondents had been appointed in the Land and Building Tax Department after a regular selection by a duly-constituted Committee. In the aforesaid premises, we unhesitatingly come to the conclusion that the appointment of the respondent in the Land and Building Tax Department with effect from 1.3.1974 was on substantive basis."
52. The respondents have further relied upon the judgement of the Division Bench of this court in Nagaroo Ram and others Vs State of U.P. and others, 2012(2) ADJ 344. Para 22, 23 and 24 of which has been relied upon by the respondents and the same read as under:-
"22.In Rudra Kumar Sain and others vs. Union of India(2000) 8 SCC 25 the Supreme Court, in almost a similar situation dealing with the claim of the adhoc Additional District and Sessions Judges vis-a-vis their seniority amongst direct recruitment and promotees, held that in service jurisprudence a person, who possesses the requisite qualification for being appointed to a particular post and he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". The word 'adhoc' is described as "for particular purpose, made, established, acting or concerned with a particular and or purpose" vide P. Ramanatha Aiyer's Law Lexicon (2nd Edition). The meaning of word 'fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist'. Following O.P. Singla & another etc. v. Union of India & others 1985 (1) SCR 351 the High Court had taken a decision that adhoc services could not be taken into consideration as continuous service for promotion. It was held by the Supreme Court that the High Court of Delhi committed an error in allocating seniority on the basis of length of continuous officiation by excluding the persons on the ground that they had held posts on adhoc basis or for fortuitous reasons or by way of stop-gap arrangement. In substance the Supreme Court held that an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and appointees possess the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be fortuitous. While quashing the seniority list the Supreme Court directed the High Court to draw the seniority list afresh prior to the amendment of the Recruitment Rules in the year 1987 and to re-determine the seniority on the basis of continuous length of service in the cadre.
23. In Raj Kishore Vishwakarma v. Union of India (1997) 11 SCC 619 the Supreme Court held:-
"4. Mr. Vikram Mahajan, learned counsel appearing for the Railways, has very fairly stated that the appellants were appointed in relaxation of the Rules in exercise of the powers under Rule 113. He has taken us through the counter filed before the Tribunal and also before this Court wherein it is clearly stated that the appellants were appointed in relaxation of the Rules. We are of the view that the appellants having been appointed in relaxation of the Rules their appointments have to be treated under the Rules. When the appellants were appointed under the Rules even the ad hoc period, which is continuous, has to be taken into consideration for the purpose of fixation of seniority in the cadre of Typists."
24. In Union of India vs. Dharam Pal and others (2009) 4 SCC 170, the same principle was reiterated, that an employee appointed to a post according to rules will be entitled to seniority reckoned from the date of his appointment and not from the date of his confirmation."
53. In our opinion, the said judgments are on their own facts and have no application to the facts of the present case. The petitioners herein have not been holding the post of Assistant Engineer (Trainee) for an indefinitely long time.
54. Reference has been made to the judgement of R.S. Ajara (supra). Para 12 and 13 of which read as under:-
"12. The learned Judges on the Division Bench of the High Court have referred to the decision in Prafulla Kumar Swain [supra] and have observed that this court did not base its conclusion only on Regulation 12(c) and that the absence of a provision similar to Regulation 12(c) in the 1981 Rules does not make any difference. We find it difficult to agree with the said view of the High Court. In Prafulla Kumar Swain [Supra], it has been observed:
".........Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. We must give full meaning and effect to this Regulation.
....Nowhere in the recruitment Rules of 1959 it is specified that services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service."
13. It would thus appear that in view of the express provision contained in regulation 12(c) it was held that the period of training could not be reckoned for the purpose of seniority. There is no provision similar to Regulation 12(c) in the 1981 Rules. In the absence of a provision similar to Regulation 12(c) in the 1981 Rules it is not possible to say that the 1981 Rules postulate that the seniority of directly recruited Assistant Conservator of Forests must be counted only from the date of their appointment and the period of training undergone by them prior to the appointment must be ignored. The learned Judges on the Division Bench of the High Court referred to Rule 6,7 and 8 of the 1981 Rules and have observed that the statutory position emanating from the said rules is that the appointment of a direct recruit takes place only after his successful completion of training course. We are unable to construe these rules to mean that seniority should be counted from the date of appointment and the period of training should be excluded. We must, therefore, proceed on the basis that the 1981 Rules do not lay down any principle in the matter of fixation of seniority of the Assistant Conservator of Forests who are recruited under the provisions of the said Rules. Since the Rules are silent it was open to the State Government to lay down the principle for fixation of seniority by an administrative order and the resolution dated January 31, 1992 cannot be held to be bad on the ground that it is inconsistent with the 1981 Rules."
55. In our view, the said judgment does not help the respondents at all.
56. Reference has also been made to the judgment of Narendra Kumar Tripathi (supra). Para 15 of the said judgment reads as under:-
"15. The scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making direct recruitment after due selection and by applying the 1979 Rules which Rules have been extended from time to time to subsequent recruitments, services were regularised. Validity of the scheme of these recruitments is not under challenge. In such circumstances, when the Rules provide that such ad hoc appointments have to be regularised and seniority counted from the date of appointment, the writ petitioner could not be deprived of the past service rendered by him from 12-6-1985 till the date of regularisation. It is not a case of appointments made without due selection or without vacancy or without qualification or in violation of the Rules. The larger Bench in Farhat Hussain v. State of U.P., (2005) 58 ALR 581 failed to observe that the appointment of the writ petitioner was not dehors the Rules nor was by way of stopgap arrangement. The Rules had the effect of treating the appointment as a regular appointment from initial date of appointment. In these circumstances, the principle laid down in Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 was not applicable. It is not a case where service rendered is either fortuitous or against the rules or by way of stopgap arrangement. Applying the principle laid down in Direct Recruit Class II Engg. Officer's Assn. v. State of Maharashtra, (1990) 2 SCC 715, the writ petitioner is entitled to count service from 12-6-1985. Moreover, the Department has allowed the benefit of past service to other similarly placed incumbents as observed in the judgment giving rise to the appeal of the Department."
57. In Pawan Pratap Singh (supra) the proposition for determination of seniority was laid down. Para 45 of the judgement reads as under:-
"45. From the above, the legal position with regard to determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time."
58. In our opinion, the said judgment does not help the Respondents at all as the Supreme Court has itself held that the effective date of selection for determination of seniority has to be understood in the context of the service Rules.
59. In Ashok Kumar Srivastava (supra) relied upon by the respondents, the respondent no.1 therein had claimed appointment from the date of occurrence of the vacancy which was not accepted by the Supreme Court. Para 25 of the judgment reads as under :-
"25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do."
60. Balwinder S. Dhillon (supra) was a case where the probationary period was counted towards seniority. In our opinion, the said judgment also has no application to the facts of the present case inasmuch as the proviso to Rule 13 of the Punjab Development and Panchayat (Class II) Service Rules, 1974, the merit determined by the Commission would govern the seniority, and it was held that the same cannot be disturbed while fixing the seniority and therefore, the plea for counting the seniority on the completion of the probationary period was rejected. Para 7 of the judgment reads as under:-
"7. It may be stated that the probation is provided both for the direct recruitment as well as for persons recruited otherwise including promotion. The main portion of Rule 13 stipulates that the inter se seniority of the members of the service shall be determined by the length of continuous service on a post in each cadre of the service. Thus, continuous length of service is the ordinary rule. But so far as direct recruits are concerned, the proviso to Rule 13 takes it out of the main part of Rule 13. Under the proviso, the merit determined by the Commission would govern the seniority, and it cannot be disturbed in fixing the seniority. Note 2 appended to the aforesaid rule, therefore, would apply to all those cases, which are not covered by the proviso and the seniority is governed by the main part of Rule 13. That also is the effect, if a conjoint reading of Rules 10, 12 and 13 is made. We are unable to accept the contention of the learned counsel for the appellant that even in the case of direct recruits notwithstanding the proviso, in the event the probation period is extended, then such direct recruits can be held to be members of the service only on completion of extended probationary period and their seniority would be reckoned from that date."
61. The learned counsel for the respondents next submitted that the direct recruits had always been treated as in service inasmuch as in the order of appointment dated 17.1.2014 itself they were referred to as "on job". It is, therefore, submitted that their seniority would count from the date of their first appointment as Assistant Engineer (Trainee) w.e.f. 5.5.2012. In support of their contention reference has been made to the judgment in the case of J.L. Sharma (supra).
62. In our opinion, the said judgment has absolutely no application to the facts of the present case inasmuch as the Supreme Court has observed that by notification dated 30.4.1986 Schedules to the Himachal Pradesh Forest Service (Class II) Recruitment, Promotion and Certain Conditions of Service Rules, 1996 were amended and in column (10) it was provided that the candidates selected for training at the Forest Research Institute and Colleges, Dehradun or at any other place, shall while undergoing the training be treated as 'in-service' candidates from the date of joining the Institute. In the present case, there is no such provision in the Rules and therefore, mere mention in the letter of appointment of 17.1.2014 treating the petitioners as "on job" would not imply that they were "on job" from 5.5.2012 contrary to the rules.
63. Regulation 3 of the Regulations, 1970 which contains the definitions, in clause (30) defines 'Trained Engineer' to mean a Trainee Engineer who after a course of successful Training under the Board is declared fit for appointment as an Assistant Engineer under the Board. This denotes that an Assistant Engineer (Trainee) does not become a Trained Engineer unless and until he had successfully completed a course of Training and is declared fit for appointment as an Assistant Engineer. Regulation 5 Clause (1) (a) of Part III of the Regulations, 1970, also speaks of initial recruitment to the service made to the post of Assistant Engineers by appointment from among Trained Engineers to the extent of the quota prescribed in Regulation 5 which has since undergone amendment. The word 'Trained Engineer' when read in consonance with the word 'Recruitment' shows that an Assistant Engineer would be treated as a Trained Assistant Engineer only after he successfully completes the course of Training.
64. Regulation 17 Clause (1) which deals with appointment to the post of Assistant Engineer provides that a person finally selected for appointment to the service as Assistant Engineer in the manner prescribed in these Regulations shall be appointed thereto by the appointing authority. The word "finally selected for appointment" cannot be said to refer to selection through the Electricity Service Commission only but must as of necessity include Training as an integral part of the selection and passing of the final test. Otherwise, there was no necessity for the use of the words "finally selected".
65. Regulation 19 deals with seniority and provides that the seniority of officers on their appointment to the service shall be determined as per the Regulations, 1998. Regulation 19 also uses the words "seniority of officers on their appointment". The word appointment has not been defined in Regulation 3 but when read in the context of clause (30) of Regulation 3 and Regulation 17, it can only mean a Trained Engineer who after a course of successful training is declared fit for appointment as an Assistant Engineer and the designation thereafter given to such an appointee is "Trained Engineer".
66. Rule 8 of Appendix 'B' of the Regulations, 1970 also provides that candidates who satisfy the provisions of Rule 7 shall have to undergo training for such period and on such terms as the Board may decide, including practical training which may last for a period of three years from the date of initial appointment on the post of Assistant Engineer after training, failing which the Bond will be forfeited to the Board. Rule 11 of Appendix B is more elaborate when it says that on completion of the training and before appointment as Assistant Engineer, a trainee will have to pass a final test as may be prescribed. Such Trainee may also be required to sign a Service Agreement setting forth the terms and conditions of his appointment as may be prescribed. The words "on completion of training and before appointment as Assistant Engineer", in our opinion would leave absolutely no iota of doubt that an Assistant Engineer would be contemplated to have been appointed as such only on completion of training and after passing the 'final test'.
67. Sri Arvind Srivastava, learned counsel for the respondents herein submitted while dealing with Rule 13 of Appendix B that the words that a candidate will lose his seniority if he fails to qualify in the first test or tests, can have only one interpretation, namely, that his seniority would count from the date of his initial appointment and only if he fails in the first test or tests would he stand to lose his seniority inasmuch as a person cannot be said to lose something which he does not already possess.
68. In our opinion, such a reasoning apart from being misconceived cannot be endorsed particularly when read with the reference to the various provisions of the Regulations, 1970 and Appendix-B thereto referred to hereinabove. In our opinion, the true import of Rule 13 of Appendix-B would be that a candidate who fails to qualify the first test or tests would lose his seniority viz-a-viz those who would otherwise qualify the test and be appointed as Assistant Engineer, meaning thereby that a candidate who qualifies the test subsequently would be junior to the person who qualifies the test at an earlier point of time. Therefore, we are of the firm view that 'substantive appointment' as defined in para (h) of Regulation 4 of the Regulations, 1998 means an appointment not being an ad hoc appointment on a post in the cadre of a service made after selection in accordance with the service regulations relating to that service can only have one meaning, namely, appointment after successful completion of training and passing the final test as defined in clause 30 of Regulation 3 read with Regulation 17 and Paras 8, 11 and 13 of Appendix -B of the Regulations, 1970.
69. We are fortified in our view by the terms and conditions as laid down in the letter of appointment of the direct recruits dated 5.5.2012 which provides that the period of training would be of 12 months and only on successful completion of the same the candidate would be appointed as Assistant Engineer where such training is completed in continuation of the initial recruitment. The first condition of the appointment letter of 5.5.2012 further mentions that the period of training would count towards increments. The word 'seniority' does not find mention herein and therefore, it must be assumed that the omission was deliberate. The condition no. (2) no doubt mentions that the candidate would be appointed on the minimum of pay of Rs. 15,600/- in the band-III scale of Rs. 15600-39100/- in the grade pay of Rs. 5,400/- with benefit of Dearness Allowance and other emoluments but again that in itself would not imply that the period of training would count towards seniority if the rules do not contemplate the period of training to count towards seniority. No doubt the rules of seniority are silent to the effect as to whether the period of training would count towards seniority but from the definition of the term Assistant Engineer/Trained Engineer and the various provisions of the Regulations, 1970 and Appendix-B referred to hereinabove there can be only one interpretation that the period of training and passing of the final test would be an inherent and integral part of the selection and it is only on successful completion of such training and passing of the final test that the Assistant Engineer (Trainee) would qualify for appointment as Assistant Engineer and it is the date of such appointment as Assistant Engineer after successful completion of training and passing the final test that would be the date of substantive appointment of such Assistant Engineers. The judgment of J.L. Sharma (supra) referred to by the respondents would have no application in the facts and circumstances of the present case. The Supreme Court in that case was specifically considering the Himachal Pradesh Forest Service (Class II) Recruitment, Promotion and Certain Conditions of Service Rules, 1966 which after amendment in Clause (10) categorically provided that the candidates selected for training at the Forest Research Institutes and Colleges, Dehradun or at any other place shall while undergoing the training be treated as 'in-service' candidates from the date of joining the Institute. The observation of the Supreme Court in para 6 of the judgment, in our opinion, was in the context of the specific rules under consideration in that case. In the Regulations, 1970 or in the Regulations, 1998, there is no such provision for treating the Assistant Engineer (Trainee) as an "in-house" candidate during the period of training and, therefore, merely because the Trainee Assistant Engineer would also be entitled to salary and increments during the period of training would not by itself lead to the inference that the period of training would also count towards seniority.
70. Regulation 8 clause (1) of the 1998 Regulations provides that the seniority of persons appointed shall subject to the provisions of the following sub-regulations be determined from the date of the order of their substantive appointment ... We have already held substantive appointment as being the date of appointment of an Assistant Engineer after successful completion of training and passing of the final test and therefore, we are of the firm view that seniority of an Assistant Engineer would count only from the date of such appointment as Assistant Engineer after successful completion of training and passing the final test.
71. In Prafulla Kumar Swain (supra), the Supreme Court was considering the Orissa Forest Service Class II Recruitment Rules, 1959 as well as Rules of 1984. The question therein was whether the respondents therein were to be assigned seniority from 1979 (the year of recruitment) or from 1981 (the year of appointment). The Rules, 1959 used the word "recruited", the 1984 Rules used the word "appointed". Paragraphs 22 to 30 of the said judgment read as under:-
"22. While the matter stood thus one of the directly recruited officers (Prakash Chandra Misra, respondent No.1) filed a petition before the Tribunal challenging the seniority. He contended that the promotees who were promoted in the year 1981- 82 ought to have been assigned a place lower than him as per recruitment rules. Two main contentions were:
1. His services should be reckoned from the date of recruitment itself and not from the date of actual appointment. Therefore, the exclusion of the period of two years' training for the purposes of reckoning the seniority was illegal.
2. The promotees had been appointed in excess of the quota which the rules had prescribed. There is no specific order of Government providing otherwise.
23. The Tribunal accepted these contentions and held that the petitioner before it being a direct recruit of the year 1979 must be treated as such and had to be confirmed and promoted on the basis of being a direct recruit of the year 1979. This should be done within the 2/3rd quota for direct recruits. Accordingly the petition was allowed. It is under these circumstances, special leave petitions have come to be preferred. Having regard to the argument two points arise for our determination:
(1) Whether the direct recruits are to be considered as recruited in the year in which they were selected by the Service Commission and sent for training into the Forest College or in the year in which they were actually appointed to a working post on completion of training?
(2) Whether there was a quota fixed for promotees in the Orissa Forest Service during the relevant years?
24. Even at the outset, we may point out that the Tribunal has grossly erred in holding that the Orissa Forest Service Class II Recruitment Rules of 1959 are mere administrative instructions. On the contrary, these rules were framed under the proviso to Article 309 of the Constitution and they are statutory in character.
25. Section 3(e) of 1959 Rules says "Service" means the Orissa Forest Service Class II. Rule 5 reads as under:
"5. (1) Recruitment to Class II service shall be made-
(a) by direct recruitment on the result of competitive examination as per Regulation-I appended to this rule;
(b) by promotion as per the Regulation II appended to this rule governing promotions to the Orissa Forest Service, Class II;
(2) Government shall decide from time to time the number of vacancies in class II Service to be filled by direct recruitment and by promotion.
(3) Save as otherwise decided by Government, number of posts of the service filled up by promotion shall not exceed one-third of the total number of such posts in the cadre."
26. Rule 9 is as follows:
"9. (a) When officers are recruited by promotion and by direct recruitment during the same year the directly recruited members shall be considered senior to the promoted members irrespective of their dates of appointment.
(b) In case of promotion, seniority may be determined in accordance with the positions the promoted officers held in the recommendation of Public Service Commission made according to merit.
(c) In case of direct recruitment, seniority may be determined according to the achievements in the examination in the Forest College."
27. Besides these rules there are also Regulations dealing with direct recruitment. It may be stated that the Regulations prescribe the condition of eligibility (Regulation I(2)), educational qualification (Regulation I(6)), written test by means of a competitive examination (Regulation I (8) (a)) and a viva voce test. The candidates are to be summoned for viva voce test on securing the minimum qualifying marks prescribed by the Commission. Thereafter the Commission prepares a list of successful candidates provided they are found fit in the physical test as prescribed under Regulation I(5). The list of successful candidates is to be forwarded to the Government for approval.
28. Regulation 12 is important for our purposes. Under that Regulation the finally selected candidates are required to undergo two years training. During the period of pendency a consolidated monthly allowance of Rs. 150 as stipend is paid. Under clause (b) of that Regulation he is required to execute a bond provided for in Appendix A. Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government. Such service will count only from the date of appointment to the service after successful completion of the course of training. (Emphasis supplied). We must give full meaning and effect to this Regulation.
29. At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office.
30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment."
72. We find that in the case before the Supreme Court also, the Regulations clearly provided that the service would count only from the date of appointment to the service after successful completion of the course of training and there also the candidate would be paid monthly allowances and he would have to execute a Bond as provided in the Appendix-A during the period of two years of training. We find support from the observations of the Supreme Court in Parfulla Kumar Swain (supra) in the view we have taken to hold that substantive appointment of an Assistant Engineer would only count from the date of his appointment after successful completion of training and passing of the final test.
73. The case of Harkesh Chand (supra) cited by the petitioners was one of an apprentice undergoing training and the appointment letter only stated that on successful completion of training, the apprentice may be appointed as Plant Attendant Grade II/Technician Grade II. In that context, the Supreme Court held that it was not a mandatory term incorporated in the agreement casting any obligation on the employer to provide employment to the apprentice. In our opinion, the said judgment does not touch the issues involved in the present writ petition and would be of no assistance to the petitioners.
74. The case of Shitala Prasad Shukla (supra) referred to by the petitioners, in our opinion, has no direct bearing on or application to the facts of the present case and would be of no assistance to the petitioners.
75. The further contention of the petitioners in para 27 of the writ petition is that the directly recruited Assistant Engineer of the recruitment year 2011-12 were given enblock seniority from Sl. no. 1 to Sl. no. 184 above the petitioners and after the Sl. no. 185 up to Sl. no. 422, the seniority of the petitioners and others has been fixed on a rotational basis between a promotee and direct recruit and Sl. no. 423 to Sl. no. 559 are promotee Assistant Engineer whether under the 40% quota or 8.33% quota. This quota of 40% or 8.33% though accepted by all the learned counsel for the parties but did not find mention in the Regulations, 1970 which prescribed the quota as:-
(a) 65-1/3% by appointment from among Trained Engineers;
(b) 33-1/3% by promotion from amongst members of Junior Engineers Service in the Selection Grade in the manner prescribed in Appendix C.
(c) 1-1/3% by promotion from amongst the confirmed and qualified computers (selection Grade) (E/M) in the matter prescribed in Appendix C. We, therefore, sought a clarification from the counsel for the department as to when and how the percentage quota changed as under:-
a) Direct Recruitment -50.34%
b) Means of Promotion from JE to AE 40%
c) During the course of service as JE if person acquires B.Tech degree 8.33%
d) From Draughtsman/Computers 1.33%
76. The learned Standing Counsel in para 4 of his supplementary counter affidavit has clarified that subsequently the Regulations, 1970 were amended vide Regulation dated 28.11.2014 and the quota as referred to above were prescribed which is not disputed among the learned counsel for the parties. In para 16 of the counter affidavit, it is further stated that vacancy of Assistant Engineers is calculated on yearly basis with effect from 1st July to 30th June next and the vacancies of direct recruits which were filled up were backlog vacancies of the year 2008-09 to 2011-12. The chart given in para 16 of the counter affidavit is already reproduced in para 39 hereinabove. The averments of paragraph 16 of the counter affidavit have not been denied in para 12 of the rejoinder affidavit and in fact all that has been stated is a reiteration of the earlier contention of the petitioners that the private respondents-Assistant Engineers appointed by direct recruitment on 17.1.2014 cannot claim seniority from 5.5.2012 by counting the period of training undergone by them. A supplementary counter affidavit has also been filed on behalf of the respondents no. 2, 3 and 4 to the same effect taking the same stand as in paragraph 16 of the counter affidavit giving a quota wise distribution of the vacancies occurring in the various years which were taken as backlog vacancies. The chart given in paragraph 8 of the supplementary counter affidavit is reproduced below:-
Sr. No. Selection Year 40% Quota 8.33% Quota 1.33% Quota 1 2008-09 152 Zero 16 2 2009-10 226 Zero 17 3 2010-11 291 09 19 4 2011-12 151 22 24
77. Sri Manish Goyal, learned Additional Advocate General referring to the clause 3 of Regulation 8 of the Regulations, 1998 submitted that the sub clause provides that where appointments are made both by promotion and direct recruitment on the result of any one selection, the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order, the first being a promotee and the second a direct recruit and so on. He also referred to the proviso to the Sub Clause (3) and submitted that where appointments from any source are made in excess of the prescribed quota the person so appointed in excess of the quota shall be pushed down for seniority to the subsequent year or years in which there are vacancies and further submitted that where the appointments from any source fall short of the prescribed quota and appointments against such unfilled vacancies are made in subsequent year or years the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made so, however, that their names shall be placed at the top followed by the names in the cyclic order of other appointees. He, therefore, submitted that since the direct recruits were being appointed against the backlog vacancies of the year 2008-09 to 2011-12, clause (ii) of the proviso to Regulation 8 (3) would apply and also such direct recruits would therefore be entitled to have their names placed at the top followed by the names in cyclic order of the other appointees.
78. The fact that the direct recruits were appointed against the backlog vacancies of the year 2008-09 to 2011-12 has not been disputed by the petitioners in their rejoinder affidavit. The validity of clause (ii) of the proviso to clause (3) of Regulation 8 of the Regulations, 1998 which provides that such appointees shall be placed at the top of the list followed by names of others in cyclic manner has also not been challenged by the petitioners. We, therefore, are of the firm view that the direct recruits-respondents herein appointed against the backlog vacancies of the year 2008-09 to 2011-12 have rightly been placed en masse above the petitioners in the tentative seniority list in terms of clause (ii) of the proviso to clause (3) of Regulation 8 of the Regulations, 1998. It is also not the case of the petitioners, in any of the writ petitions, that they were not appointed on the result of any one selection. The petitioners in the present writ petition have not challenged the final seniority list and have only assailed the tentative seniority list dated 28.8.2017 as well as the order dated 2.5.2017 by which the objection of one Neeraj Kumar Pandey against the tentative seniority list has been rejected. Therefore, having considered the facts in its entirety, we do not find any illegality or infirmity in the impugned orders.
79. The writ petition no. 44512 of 2017 lacks merit and is accordingly, dismissed.
80. In the connected Writ petition no. 36723 of 2017, (Sanjay Kumar Chaturvedi & Ors. Vs State of U.P. & Ors.) the petitioners are challenging the order dated 2.5.2017 whereby the objection filed against the tentative seniority list claiming grant of seniority w.e.f. 5.6.2012 above direct recruits has been rejected. We have already considered this issue while deciding the Writ petition no. 44512 of 2017 and therefore, this writ petition is also dismissed in the light of the observations made in that writ petition.
81. In Writ petition no. 48107 of 2017 (Sanjay Kumar Chaturvedi & Ors. Vs State of U.P. & Ors.), the petitioners who are promotees are seeking quashing of the final seniority list dated 28.9.2017 and the promotion order dated 28.9.2017 whereby the respondents 5 to 157 have been given promotion on the post of Executive Engineer. The issue of substantive appointment and seniority has already been decided in Writ Petition no. 44512 of 2017 and therefore, we do not find any illegality or infirmity in the final seniority list dated 28.9.2017 or the promotion list dated 28.9.2017 which is based on the final list. The writ petition is accordingly, dismissed.
82. In Writ Petition no. 49572 of 2017 (Abhay Kumar Dwivedi and Ors. Vs State of U.P. and Ors.), the petitioners are challenging the final seniority list dated 28.9.2017 and the Promotional Order/List dated 28.9.2017, Annexure-12 to the writ petition. The petitioners are also challenging the order dated 28.9.2017, Annexure-10 to the writ petition) by which the representation of petitioner no.2 Vivek Singh has been rejected. The issue of seniority dated 28.9.2017 as well as promotion order dated 28.9.2017 has already been decided in the connected writ petition no. 44512 of 2017 and therefore, this writ petition is also dismissed in the light of the observations made in the connected writ petition.
83. In the connected Writ petition no. 14416 of 2017, (Shyam Gopal Saxena Vs State of U.P. & Ors.) the petitioner is seeking quashing of the order dated 21.2.2017 whereby his objections against the tentative seniority list has been rejected as well as the order dated 21.2.2017 notifying the final seniority list. The contention of the petitioner is that he was promoted on 5.6.2012 whereas the private respondents no. 5 to 11 were promoted on 11.5.2012. A tentative seniority list was issued on 15.12.2016 against which the petitioner filed his objections on 19.12.2016 which has been rejected by the order dated 21.2.2017 and thereafter, a final seniority list dated 21.2.2017 has been notified. His further grievance is that the respondents no. 5 to 11 have been placed at Sr. no. 185 to 191 in the tentative seniority list but in the final seniority list of 21.2.2017 their names have been placed from Sr. no. 175 to 181 but the name of the petitioner does not find mention in any of the list.
84. In para 37 of the counter affidavit filed on behalf of the respondents no. 3 and 4 , it has been stated that the petitioner was awarded censure entry vide order dated 18.6.2010 which resulted in an adverse entry for the year 2009-10 and as per the Corporation's Order dated 11.01.2000, Annual Confidential Report (ACR) of minimum two years out of last three years should be satisfactory for promotion whereas the petitioner was awarded adverse entry for the year 2007-08 and 2009-10 and therefore, his case for promotion was turned down by the DSC/DPC in its meeting held on 18.12.2010. It is further stated that the petitioner was found suitable for promotion in the DSC/DPC meeting held on 01.6.2012 for the selection year 2011-12 and therefore, he cannot be held senior to the respondents no. 5 to 11 who were selected for promotion in the selection year 2010-11. No rejoinder affidavit has been filed by the petitioner controverting the averments of the counter affidavit. The issue regarding tentative seniority list dated 15.12.2016 has already been considered by us in connected writ petition no. 44512 of 2017 and that writ petition has been dismissed and therefore, this writ petition is also dismissed in the light of the observations made in the connected writ petition no. 44512 of 2017.
85. In the connected Writ petition no. 16125 of 2017, (Abhay Shankar Dwivedi & Others Vs State of U.P. & Ors.), the petitioners are seeking quashing of the order dated 21.2.2017 whereby their objections against the tentative seniority list has been rejected as well as the order dated 21.2.2017 notifying the final seniority list. The allegation is that certain persons were shown at Sr. No. 37, 91, 99, 146 & 185 who were promoted on 11.5.2012 with the petitioners but in the final seniority list it is stated that the names of the petitioners do not find place. The petitioners preferred a representation which has been rejected by the order dated 21.2.2017 rejecting the claim of the petitioners no. 1, 3 and 4 and thereafter on 21.2.2017 a final seniority list has been published in which also the names of the petitioners do not find place.
86. At the outset, Sri H.N. Singh, learned Senior Counsel stated that he does not want to press the relief no.1, therefore, the writ petition so far as relief no.1 is concerned is dismissed. However, Sri H.N. Singh states that he only presses the relief no.2 and prays that the names of the five petitioners may be included in the selection year of 2010-11 and they may be placed at the appropriate place in the seniority list.
87. Sri Manish Goyal, however, submitted that by the orders dated 24.12.2010 and 7.02.2011, the list of only those Assistant Engineers were notified who were promoted against the vacancies available at that time. The DPC was held on 18.12.2010 taking into consideration only those vacancies which fell vacant between 1st July, 2010 upto 30th June, 2011 whereas the petitioners became eligible for promotion for those vacancies which occurred after 7.2.2011. The contention of the respondents in paragraph 20 of the counter affidavit also is that the five Assistant Engineers, namely, Sri Chandra Mohan Singhal, Sri Lal Chandra Yadav, Sri Sanjeev Kumar Goel, Sri Sunil Kumar Gupta and Sri Ambarish Kumar Srivastava have been placed above the petitioners in the seniority of feeder cadre (i.e. Junior Engineer) as the name of these five persons occurred at Sl. No. 7022, 7151, 7175, 7346 and 7447. The petitioner no.1 on the other hand was placed at Sl. No. 8064, petitioner no.2 at 7930, petitioner no. 3 at 8068, petitioner no.4 at 8073 and petitioner no.5 is placed at Sl. No. 8079, therefore, it is stated that there is no illegality, if the petitioners do not find place in the tentative seniority list of 2010-11. It is also stated that the petitioners were not promoted in the DPC held on 18.12.2010 for the reason that there was an order of status quo passed by the Supreme Court in Civil Appeal no. 2608 of 2011 in February, 2011 and therefore, no further promotions were held in view of the order of status quo.
88. The contention of para 20 of the counter affidavit though denied in para 16 of the rejoinder affidavit but the details mentioned in the counter affidavit regarding placing of the five persons at Sl. No. 7022, 7151, 7175, 7346 and 7447 of the seniority list of the feeder cadre of Junior Engineers and at the same time, the seniority position of the petitioners no. 1 to 5 being at Sl. No. 8064, 7930, 8068, 8073 and 8079 respectively, has not been specifically denied or explained. Thus, the petitioners were all junior to the persons above whom they are claiming to be placed or at least to be placed in the seniority list of Assistant Engineer for the selection year 2010-11. We, therefore, do not find any merit in the writ petition no.16125 of 2017 and the same is accordingly, dismissed.
89. The Writ petition no. 56779 of 2017, (Rahul Yadav and others Vs State of U.P. and others) has wrongly been connected with the above bunch of writ petitions as this writ petition relates to inter se seniority between the petitioners and respondents who are both promotees and the dispute is one of inter se seniority between promotees. Therefore, office is directed to delink this writ petition from the above bunch of writ petitions and the matter may now be listed on 20.9.2018, before the appropriate Bench.
Order date: 13th September, 2018 Kirti