Allahabad High Court
Suresh Chand Arora vs State Of U.P. And 4 Others on 23 September, 2014
Bench: Sheo Kumar Singh, Dinesh Maheshwari
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Case :- WRIT - A No. - 26922 of 2014 Petitioner :- Suresh Chand Arora Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Udayan Nandan,Shashi Nandan Counsel for Respondent :- C.S.C.,Anil Kumar Srivastava,Kaushal Kumar Singh,Mohd.Naseer Ahmad,Shivam Yadav WITH Case :- WRIT - A No. - 31743 of 2014 Petitioner :- Sama Kant Srivastava And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Srivastava,T.P. Singh Counsel for Respondent :- C.S.C.,Shivam Yadav,Udayan Nandan Hon'ble Sheo Kumar Singh,J.
Hon'ble Dinesh Maheshwari,J.
(Delivered by Hon'ble Dinesh Maheshwari, J.) These two writ petitions, relating to the competing claims of seniority in the cadre of Project Engineer in the New Okhla Industrial Development Authority, Gautam Buddha Nagar ('the Authority') and involving inter-related issues, have been considered together; and are taken up for disposal by this common order. In fact, the second writ petition, being Writ Petition No. 31743 of 2014 has been filed by the respondents nos. 4 & 5 of the first writ petition, being Writ Petition No. 26922 of 2014, only after passing of interim order in the first petition; and essentially in order to meet with a part of the submissions made against them. In the totality of circumstances, appropriate it is to deal with the issues involved in Writ Petition No. 26922 of 2014 at the first, as the consequences shall follow for the second petition.
Writ Petition No. 26922 of 2014 The petitioner herein Shri Suresh Chand Arora, presently working as Project Engineer in the New Okhla Industrial Development Authority, has preferred this writ petition on being aggrieved of the seniority list dated 09.05.2014 issued by the Deputy Chief Executive Officer of the Authority(Annexure-13), particularly as regards his seniority placement vis-a-vis the respondents nos.4 and 5 Shri Mohd. Ishrat and Shri Samakant Srivastava; and has claimed the following reliefs:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned seniority list dated 9.5.2014 issued by Deputy Chief Executive Officer, New Okhla Industrial Development Authority, Gautam Buddha Nagar (Annexure -13 to this writ petition).
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner senior to the private respondent nos.4 and 5 namely S/Sri Mohd. Ishrat and Sama Kant Srivastava, on the post of Project Engineer (Civil), New Okhla Industrial Development Authority, Gautam Buddha Nagar.
(iii) issue any other suitable writ, order or direction in favour of Petitioner to which this Hon'ble Court may deem fit and proper in the circumstances of this case.
(iv) award the cost of this writ petition in favour of the Petitioner."
The question of seniority placement of the respondents nos.4 and 5 and the dispute as regards the seniority of the rival parties had been the subject of few rounds of litigation; and several orders one after another have also been passed by the authorities concerned. In view of the chequered history, the relevant facts and events, in their feasible chronology, could be taken note of as follows :
On 26.12.1979, the petitioner was appointed as Junior Engineer in the Authority; and on 21.08.1989, he was promoted to the post of Assistant Project Engineer. Thereafter, on 29.01.2002, the petitioner was promoted to the post of Project Engineer.
It may be noticed that at the time of promotion of the petitioner on the post of Project Engineer, the Recruitment and Promotion Policy of the Authority issued in the year 1993 was in operation whereby and whereunder, the post of Project Engineer was to be filled in 66% by promotion and 34% by direct recruitment. As regards promotion, certain general principles were also laid down; and the said principles contemplated promotion to Class I post to be based on merit (Annexure-1 to the writ petition read with Annexure-S.A.3 to the supplementary affidavit). Clauses 1, 2 and 7 of the said general principles in the Promotion Policy of the year 1993, for their relevance, are taken note of as under :-
"1. Promotion from Class II posts to Class I posts and promotion within class I cadre will be based on merit.
2. Promotion from Class III to Class II and promotion within Class II and Class III will be on the basis of seniority subject to rejection of unfit.
7. Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre and promotion is on the basis of seniority subject to rejection of unfit, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. Even if a senior person is promoted after the promotion of his junior, he will regain the seniority of the feeding cadre. Normally the selection panel should decide inter se seniority clearly."
At this juncture, a few background aspects relating to the respondents nos.4 and 5 deserve to be noticed. The respondent no.4 Shri Mohd. Ishrat had earlier been working as Assistant Project Engineer in Rural Engineering Service Department of the Government of Uttar Pradesh from 15.07.1985. He was posted with the service of the Authority on deputation on 02.07.1994. His services were absorbed permanently in the Authority by an order dated 30.03.1998. Indisputably, before joining the services of the Authority, he was working on the post of Assistant Engineer in his parent department in regular and substantive capacity. So far the respondent no.5 Shri Samakant Srivastava is concerned, he joined the services of Authority on deputation as Assistant Project Engineer on 10.08.2001. Prior to it, he was working as Assistant Engineer (Civil) in U.P. State Power Corporation from 09.08.1985 in regular and substantive capacity. His services were absorbed permanently in the respondent Authority on the post of Assistant Engineer by an order dated 27.08.2004.
On 16.03.2006, a tentative seniority list was published by the Authority in which, the petitioner was shown at Sl. No. 4 in the list of Project Engineer while the respondents nos.4 and 5 were shown at Sl. Nos.17 and 22 respectively in the list of Assistant Project Engineer (Annexure-3 to the writ petition). Aggrieved of their placement in this tentative seniority list dated 16.03.2006, the respondents nos.4 and 5 approached this Court in Writ Petition No.16353 of 2006. It appears that another incumbent Shri R. K. Goyal also filed another writ petition bearing No.16342 of 2006 questioning the same seniority list. So far the present respondents nos.4 and 5 were concerned, the contention before the Court was that their services in the parent department were required to be considered to determine their seniority. This Court allowed both the writ petitions on 31.03.2006, inter alia, with the observations that such question about consideration of the past services of the present respondents no.4 and 5 shall have to be decided by the competent authority in the light of the representations made by them and adhering to the law applicable. Accordingly, this Court quashed the seniority list dated 16.03.2006 and directed the Authority to prepare the seniority list afresh.
Thereafter, on 02.06.2006, final seniority list was published by the Authority in which, the petitioner was shown at Sl. No.4 in the list of Project Engineer while the respondents nos.4 and 5 were shown at Sl. Nos. 3 and 4 respectively in the list of Assistant Project Engineer. This list was prepared after giving benefit of past services to the respondent nos.4 and 5 (Annexure-4 to the writ petition). After such drawing of the final seniority list, the respondents nos.4 and 5 were promoted to the post of Project Engineer on 09.06.2006.
At the relevant time, the Promotion Policy of the year 2005 had been issued and was in operation, whereby the post of Project Engineer was to be filled in 100% by promotion but the feeding cadre continued to be that of Assistant Project Engineer with the requirement of minimum 8 years' experience and degree in Engineering. Noticeable it is that the above referred clauses 1, 2 and 7 of the promotion policy of the year 1993 were retained verbatim in the general principles for promotion in the Policy of the year 2005 as clauses 1, 2 and 8 respectively.
With such drawing of the seniority list dated 02.06.2006 and promotion of the respondents nos.4 and 5 on 09.06.2006, several incumbents, who were assigned seniority below them and were deprived of promotion, preferred a writ petition in this Court, being Writ Petition No.8756 of 2007, Pradeep Kumar Garg and others Vs. State of U.P. and others. This writ petition (No. 8756 of 2007) along with another writ petition were considered and decided together by a Division Bench of this Court on 03.07.2007. It may be noticed that the said petitioners, Pradeep Kumar Garg and others had earlier attempted to question before the Hon'ble Supreme Court the aforesaid order dated 31.03.2006, passed by this Court in the writ petition (No. 16353 of 2006) filed by the present respondents nos.4 and 5. However, the Petition for Special Leave (No. 9849 of 2006), preferred before the Hon'ble Supreme Court, was dismissed on 07.07.2006 with the observation that the seniority list having already been revised, the said petitioners would be at liberty to challenge the revised seniority list as also the consequential promotions. In these circumstances, the said petitioners, Pradeep Kumar Garg and others were before this Court in Writ Petition No. 8756 of 2007. The present respondents nos.4 and 5, Shri Mohd. Ishrat and Shri Samakant Srivastava were the respondents nos.3 and 4 respectively in the said writ petition No. 8756 of 2007. However, the present petitioner Shri S. C. Arora, not directly related with the issue involved, was not a party thereto.
After a detailed consideration of all the submissions of the contesting parties and on a survey of the law applicable, in the order dated 03.07.2007, this Court held valid the absorption of deputationists (respondents nos.3 and 4 herein) in the services of the Authority and further held that the past services rendered by them in the parent organization or equivalent post were required to be counted for determining the seniority. This Court also negatived the challenge to the promotion accorded to the respondents nos.4 and 5. The relevant findings and observations of this Court in the concluding paragraphs of the order dated 03.07.2007 could be usefully reproduced as under :-
"63. In view of the aforesaid settled legal position, in our considered and concluded opinion, the cases in hand fall within first category or line of cases, where the deputation has been provided as one of the source of recruitment amongst the sources of recruitment on the post in question under Regulation 16 (1) (c) of Service Regulations 1981, therefore, in view of law laid down by Hon'ble Apex Court in K. Madhavan's case (supra), which has been consistently followed and crystallized by Hon'ble Apex Court in subsequent decisions rendered in K. Anjaiah's case (supra), M. Ramchandran's case (supra) and Sub Inspector Roop Lal's case (supra), the past services rendered by deputationists of present case on regular or substantive basis in their parent department or organisation in respective categories or posts or grades before joining the post on deputation in the services of the Authority shall be counted and computed towards length of their service for the purpose of determination of their seniority on respective deputed posts and after joining their post on deputation till their permanent absorption on said post the services rendered by the deputationists shall also be counted towards length of service for determination of their seniority on deputed post, as it is not in dispute that prior to joining their posts on deputation in respective categories the deputationists-respondents were already working in regular and substantive capacity on equivalent post or category or grade in their parent organisation/department. Although no statutory rule or office order or circular has been shown to us which takes away the benefit of past services rendered by deputationists before their joining the post on deputation in the services of the Authority, but in view of law laid down by Hon'ble Apex Court in Sub Inspector Roop Lal's case (supra) any rule, regulation or executive instruction which has the effect of taking away the services rendered by deputationists in an equivalent post in parent department while counting their services in deputed post would be violative of Articles 14 and 16 of the Constitution of India, hence liable to be struck down. Therefore, by taking the risk of repetition we further hold that Regulations 24 (2) of Service Regulations should be interpreted in such a manner by reading down the observation made herein before so as to save its exposure from attack on the ground of its being violative of Article 14 and Article 16 (1) of the Constitution of India, until it is suitably amended by taking into account the law laid down by Hon'ble Apex Court indicated herein before.
64. Now applying the aforesaid legal position in present cases, we find from the records that Mohd. Ishrat respondent No.3 of Writ Petition No.8756 of 2007 before joining his post on deputation in the services of the Authority, he was working as Assistant Project Engineer in Rural Engineering Services, Department of Government of Uttar Pradesh from 12.6.1985. He was posted with the services of the Authority on deputation on 2.7.1994. His services were absorbed permanently in the services of the Authority vide order dated 30.3.1998. Prior to joining the service of the Authority his working on the post of Assistant Engineer w.e.f. 15.7.1985 in his parent department in regular and substantive capacity is not in dispute. Similarly, respondent No.4 of the aforesaid writ petition namely Sri Samakant Srivastava has joined the services of the Authority on deputation as Assistant Project Engineer on 10.8.2001. Earlier to it, he was working as Assistant Engineer (Civil) in U.P. State Power Corporation from 9th August 1985 in regular and substantive capacity. Vide order dated 27.8.2004 his services have been absorbed permanently in the services of the Authority on the post of Assistant Project Engineer. His aforesaid regular service on the aforesaid post from 9.8.1985 in his parent organisation is also not in dispute. Similarly, respondent No.4 of Writ Petition No.9909 of 2007 namely Sri Kalu Ram Verma has been appointed on deputation on the post of Junior Engineer on 1.2.1995 and vide order dated 3.12.1998 he has been permanently absorbed in the services of the Authority as Junior Engineer (Civil) against a reserve vacancy in the quota of direct recruitment. Earlier to it, he was working as Junior Engineer in regular and substantive capacity in U.P.S.I.D.C. w.e.f. 25.2.1986. The aforesaid past service in regular capacity is not in dispute. Therefore, the deputationists-respondents of both the writ petitions are entitled to reckon their seniority in the services of the Authority on their respective posts from the aforementioned dates, since when they were working in regular capacity in their parent organisation on their respective posts, and period of such service shall be computed towards length of their service for determination of their seniority in the service of the Authority on their respective posts.
65. As we have already held that past services of deputationists-respondents rendered in their parent department/organisation on the equivalent post prior to joining their post in the services of the Authority on deputation shall be computed towards length of their service for the purpose of determination of their seniority on their respective category of posts. By taking into account their aforesaid past services, we have examined the impugned seniority list dated 2.6.2006 prepared by respondent No.2. We do not find any illegality in determination of seniority of deputationists/ respondents by the concerned respondent and so also with the order dated 31.3.2007 passed by Chief Executive Officer of the Authority contained in C.A.-1 filed on behalf of Authority i.e. respondent No.2 of the writ petition whereby the representations filed by the petitioners of both the writ petitions have been rejected and seniority list dated 2.6.2006 earlier drawn by respondent No.2 of the writ petition has been reiterated and reaffirmed. Therefore, we are of the considered opinion that attack of the petitioners against the impugned seniority list dated 2.6.2006 and the order dated 31.3.2007 passed by Chief Executive Officer of respondent No.2 reiterating and reaffirming the impugned seniority list dated 2.6.2006 is untenable and order passed by Chief Executive Officer of the Authority as well as impugned seniority list prepared by respondent No.2 do not call for any interference by this Court under Article 226 of the Constitution of India.
66. Since the petitioners have sought consequential relief for quashing of promotion orders of respondents No.3, 4 of writ petition No.8756 of 2007 from the post of Assistant Project Engineer to the post of Project Engineer dated 9.6.2006 and in writ petition No.9909 of 2007 the petitioners have sought relief that respondent No.4 Sri Kalu Ram Verma may not be promoted from the post of Assistant Project Engineer to the post of Project Engineer in the quota of reserve category candidates belonging to the scheduled caste as a consequential relief of impugned seniority list finalised on 2.6.2006 by the respondent No.2 without any further challenge on the aforesaid promotion of contesting private respondents of both the writ petitions with other illegality in said promotion, therefore, having regard to the facts and circumstances of the case, we do not find any justification to grant any relief claimed by the petitioners in their respective writ petitions. In our considered opinion, both the writ petitions are devoid of merit and are liable to be dismissed. Thus, we dismiss both the writ petitions.
67. There shall be no order as to costs. Parties shall bear their own costs. Petition dismissed."
This order dated 03.07.2007 passed in Writ Petition No. 8756 of 2007 was sought to be questioned by the said petitioners, Pradeep Kumar Garg and others before the Hon'ble Supreme Court but the Petition for Special Leave to Appeal (Civil) No. 22095 of 2007 was dismissed by the Hon'ble Supreme Court on 03.12.2007.
In the next phase of proceedings, it appears that under the Government Orders issued on 17.3.2008 and 09.05.2008, the Authority took up the process of amendment/ revision of the existing seniority list and hence, on 24.12.2008, a tentative seniority list was issued concerning various cadres and posts wherein, the comparative placement of the parties was mentioned while also indicating the relevant dates of their initial joining as also their joining on the post of Project Engineer (Civil). The petitioner Shri S. C. Arora was shown at Serial No.4 whereas the respondents nos.4 and 5 were placed at Serial Nos. 7 and 8 respectively in this tentative seniority list dated 24.12.2008 (Annexure-6 to the writ petition). The particulars of the contesting parties, as stated in the said list, while omitting other entries, could be noticed as under :-
ifj;kstuk vfHk;Urk ¼flfoy½ dz0la0 Ukke dksM la[;k TkUe frfFk LakoxZ esa ekSfyd fu;qfDr dh frfFk OkrZeku in ij ;ksxnku dh frfFk oxZ izksUufr
4.
Jh ,l0 lh0 vjksM+k 538 10/07/1961 JE 26/12/1979 APE 21/01/1989 29/01/2002 LkkekU;
inksUufr
7. Jh eks0 b'kjr 1884 15/12/1957 A.E 15/07/1985 30/03/1998 ¼lafofy;u½ 09/06/2006 LkkekU;
inksUufr
8. Jh lekdkUr JhokLro 2609 01/12/1960 A.E 09/08/1985 27/8/2004 ¼lafofy;u½ 09/06/2006 LkkekU;
inksUufr The respondents nos. 4 and 5 submitted their objections in relation to the said seniority list dated 24.12.2008 and sought recasting of their seniority with reference to the services rendered in the parent department. These representations were considered and rejected by the concerned Standing Committee of the Authority in its meeting dated 14/15.05.2009. The considerations in relation to the respondents nos.4 and 5 in the minutes of the said meeting dated 14/15.05.2009 (Annexure -R.A.5 to the rejoinder affidavit) could be noticed as under :-
"2& Jh eks0 b'kjr] ifj;kstuk vfHk;Urk] dksM la0 1884 ds }kjk viuk uke ifj;kstuk vfHk;Urk dh ofj"Brk lwph esa muds isSf=d foHkkx xzkeh.k vfHk;Wkf=dh lsok dh lsok dks tksM+rs gq;s fu/kkZj.k djus dk vuqjks/k ¼dzekad&954½ fd;k gSA lfefr }kjk vfHkys[kksa dk ijh{k.k fd;k x;kA Jh b'kjr dk izkf/kdj.k esa fnuakd 30-3-1998 dks LFkkbZ lfoafy;u fd;k x;k FkkA buds }kjk ,d ;kfpdk ek0 mPp U;k;ky;] bykgkckn esa ;kfpdk la0 16353@2006 nk;j dh xbZ FkhA ek0 mPp U;k;ky; ds vkns'kksa ds vuqikyu esa budks iwoZ lsok dk ykHk nsrs gq;s lgk;d ifj;kstuk vfHk;Urk ds in ij ns fn;k x;k gSA o"kZ 2006 esa budh inksUufr ifj;kstuk vfHk;Urk ds in ij dj nh x;h gSA lfefr }kjk dkfeZd foHkkx ds leLr vfHkys[kksa dk ijh{k.k rFkk 'kklukns'kksa dk voyksdu ds mijkUr bl fu"d"kZ ij igqaph fd fnuakd 02&6&2006 dks tks vfUre ofj"Brk lwph tkjh dh x;h Fkh og ekuuh; mPp U;k;ky;] bykgkckn ds vkns'kksa ds vuqikyu es dh x;h Fkh ftldks ek0 loksZPp U;k;ky; }kjk mfpr Bgjk;k gS rFkk ek0 mPp U;k;ky;] bykgkckn }kjk iqu% ijh{k.k djus ds mijkUr Hkh fnuakd 03&7&2007 dks vius fu"d"kZ es mfpr Bgjk;k gSA vr% lfefr Jh b'kjr ds izR;kosnu dks Hkh fujLr djus dh laLrqfr djrh gSA 3& Jh lekdkUr JhokLro] ifj;kstuk vfHk;Urk] dksM la0 2609 }kjk viuk uke ifj;kstuk vfHk;Urk ¼flfoy½ dh ofj"Brk lwph esa muds iSf=d foHkkx m0iz0 ikoj dkWiksZjs'ku fyfeVsM dh lsok dks tksM+rs gq;s fu/kkZj.k djus dk vuqjks/k ¼dzekad&986½ fd;k gSA lfefr }kjk vfHkys[kksa dk ijh{k.k fd;k x;kA Jh lekdkUr JhokLro dk izk/khdj.k esa fnuakd 27&8&2004 dks LFkkbZ lfoafy;u fd;k x;k FkkA buds }kjk ,d ;kfpdk ek0 mPp U;k;ky;] bykgkckn esa ;kfpdk la[;k 16353@2006 nk;j dh x;h FkhA ek0 mPp U;k;ky; ds vkns'kksa ds vuqikyu es budks iwoZ lsok dk ykHk nsrs gq;s lgk;d ifj;kstuk vfHk;Urk ds in ij ns fn;k x;k FkkA o"kZ 2006 es budh inksUufr ifj;kstuk vfHk;Urk ds in ij dj nh x;h gSA lfefr }kjk dkfeZd foHkkx ds leLr vfHkys[kksa dk ijh{k.k rFkk 'kklukns'kksa dk voyksdu ds mijkUr bl fu"d"kZ ij igqps fd fnuakd 02&6&2006 dks tks vfUre ofj"Brk lwph tkjh dh x;h Fkh og ek0 mPp U;k;ky;] bykgkckn ds vkns'kksa ds vuqikyu es dh x;h Fkh ftldks ek0 loksZPp U;k;ky; }kjk mfpr Bgjk;k gSA rFkk ek0 mPp U;k;ky;] bykgkckn }kjk iqu% ijh{k.k djus ds mijkUr Hkh fnuakd 03&7&2007 dks vius fu.kZ; esa mfpr Bgjk;k gSA vr% lfefr Jh lekdkUr JhokLro ds izR;kosnu dks fujLr djus dh laLrqfr djrh gSA"
Thereafter, final seniority list was published on 27.07.2009 while retaining the place of the petitioner at Serial No. 4 and that of the respondents nos. 4 and 5 at Serial Nos. 7 and 8 respectively. In this final seniority list (Annexure -7 to the writ petition), the particulars of the present contesting parties have been mentioned as follows :-
ifj;kstuk vfHk;Urk ¼flfoy½ dz0la0 Ukke dksM la[;k TkUe frfFk LakoxZ esa ekSfyd fu;qfDr dh frfFk OkrZeku in ij ;ksxnku dh frfFk oxZ izksUufr
4.
Jh ,l0lh0 vjksM+k 538 10/07/1961 JE 26/12/1979 APE 21/01/1989 29/01/2002 LkkekU;
inksUufr
7. Jh eks0 b'kjr 1884 15/12/1957 30/03/1998 ¼lafofy;u½ 09/06/2006 LkkekU;
inksUufr
8. Jh lekdkUr JhokLro 2609 01/12/1960 27-8-2004 ¼lafofy;u½ 09/06/06 LkkekU;
inksUufr It is the case of the petitioner that after publication of the seniority list on 27.07.2009, wherein he was shown senior to the private respondents, no steps were taken by the respondents to challenge the same and as such, the said seniority list has attained finality. However, this stand of the petitioner is questioned by all the respondents with the submissions that the private respondents had indeed raised objections against this composite seniority list dated 27.07.2009 by way of several representations whereupon, a Committee was constituted to review; and, according to the respondents, this review was entirely necessary in view of the findings recorded and directions issued by this Court in the order dated 03.07.2007, which had been affirmed by the Hon'ble Supreme Court. The case of the petitioner, however, is that such exercise of revising the finalized list was taken up only pursuant to the decision of the Hon'ble Supreme Court dated 27.04.2012, delivered in the case of Uttar Pradesh Power Corporation Limited Vs. Rajesh Kumar and others : (2012) 7 SCC 1 and the consequential Government Order dated 08.05.2012. According to the petitioner, the exercise of revision of the seniority list could have only been to the extent envisaged by the said decision of the Hon'ble Supreme Court and as contemplated by the Government Orders dated 08.05.2012 and 13.05.2012 relating to the reservation in promotion and not beyond.
In view of the questions posed in this matter, apposite it shall be to take note of salient features related with the judgment of the Hon'ble Supreme Court dated 27.04.2012 in the case of Uttar Pradesh Power Corporation Limited Vs. Rajesh Kumar and others (supra). The said decision had been rendered on the question of the validity of Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 (''the Rules of 1991'), which was inserted by the U.P. Government Servants Seniority(Third Amendment) Rules, 2007. The said Rule 8-A essentially provided that notwithstanding anything contained in Rule 6, 7 or 8 of the Rules, 1991, a person belonging to Scheduled Castes or Scheduled Tribes, on his promotion, by virtue of Rule of reservation/ roaster, shall be entitled to consequential seniority also.
The aforesaid Rule 8-A was put to challenge and different orders were passed by this Court. However, ultimately, the issue was dealt with and pronounced upon by the Hon'ble Supreme Court in the aforesaid judgment dated 27.04.2012 in the case of Uttar Pradesh Power Corporation Limited Vs. Rajesh Kumar and others and therein, the provisions contained in Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1994 as also Rule 8-A, as inserted to the Rules of 1991, were held ultra vires for they were running counter to the dictum in M. Nagraj: (2006) 8 SCC 212. The Hon'ble Supreme Court, however, observed that any promotion given on the dictum of Indra Sawhney, 1992 (Supp 3) SCC 217 and without the aid and assistance of Section 3(7) and Rule 8-A shall remain undisturbed. The Hon'ble Supreme Court, in the concluding passage, said, "In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed."
After the aforesaid decision of the Hon'ble Supreme Court, the State Government issued the order dated 08.05.2012 (Annexure-9 to the writ petition), directing that the seniority lists shall be reshuffled in the light of the directions of the Hon'ble Supreme Court. However, on 13.05.2012, another order (Annexure-S.A.4 to the Supplementary Affidavit) was issued by the State Government amending the G.O. dated 08.05.2012 and clarifying that only those persons were to be disturbed who had been given the benefit of Rule 8-A while being promoted to a higher post.
Thereafter, on 06.08.2012, a draft seniority list was published by the Authority in which, the petitioner was shown at Sl. No.2 while the respondent nos.4 and 5 were shown at Sl. Nos.4 and 5 in the seniority list of Project Engineer (Annexure-10 to the writ petition).
On 14.08.2012, the respondent no. 4 made a representation against the seniority list dated 06.08.2012 (Annexure-11 to the writ petition). It is noticed that the private respondents had even earlier made several representations, including those on 14.10.2009, 26.08.2010, 12.01.2011, 12.07.2011 and 12.07.2012, against the seniority placements while claiming higher ranking on the basis of their seniority in the feeding cadre viz., that of Assistant Project Engineer.
Shorn of other details as regards various representations and counters, noticeable is that ultimately, the meeting of the Committee constituted for the purpose of revision of the seniority list was convened on 13.01.2014. The contesting parties herein as also the other incumbents working on the post of Project Engineer appeared before the Committee and their contentions were taken note of. It is also noticed that such other incumbents included one Shri Kalu Ram Verma and another Shri Sheodan Singh, whose cases were to be considered with reference to the decision of the Hon'ble Supreme Court and who had other claims to make. Composite minutes were drawn by the Committee of its proceedings after taking note of the submissions of the parties and stating its findings on the claims. The material aspects related with such decision of the Committee dated 13.01.2014 shall be dealt with hereinafter later. At this stage, further facts could be taken note of that on 21.01.2014, the petitioner made another representation before issuance of impugned seniority list but, according to the petitioner, it was not taken into consideration by the Authority (RA-6 to the Rejoinder Affidavit). Then, on 29.04.2014, reply/objection was filed by the petitioner against the representation of the respondent nos.4 and 5 (Annexure-12 to the writ petition).
However, on 09.05.2014, the Authority proceeded to issue the impugned seniority list wherein, the respondents nos.4 and 5 have been shown at serial nos.1 and 2 respectively and the petitioner has been shown at serial no.3 in the seniority list of Project Engineer (Annexure-13 to the writ petition).
The relevant part of the impugned seniority list, carrying the reasons for issuance of the same as also the placement of the contesting parties, could be noticed as under :-
dk;kZy; vkns'k dk;kZy; vkns'k la[;k ukS,Mk@dkfeZd@2012@3119] fnukad 06-08-2012 ,oa dk;kZy; vkns'k la[;k ukS,Mk@dkfeZd@2012@3336] fnukad 24-08-2012 ds dze esa ,oa v/;{k ,oa eq[; dk;Zikyd vf/kdkjh egksn; ds vkns'k fnukad 04-03-2014 ds vuqikyu esa vfHk;kaf=dh laoxZ ds flfoy laoxZ ds ifj;kstuk vfHk;Urk ¼flfoy½ ds in/kkjdks dh vafre ofj"Brk lwph ekuuh; mPp U;k;ky;] bykgkckn }kjk ;kfpdk la[;k 8756@2007 esa fn;s x;s vkns'k fnukad 03-07-2007 ,oa ek0 loksZPp U;k;ky; }kjk fo'ks"k vuqefr ;kfpdk la[;k 22095@2007 esa ikfjr vkns'k fnukad 03-12-2007 rFkk ekuuh; loksZPp U;k;ky; ds }kjk flfoy vihy la[;k 2608@2011 esa fn;s x;s vkns'k fnukad 27-04-2012 ds dze esa 'kklukns'k la[;k 4@1@2002Vh-lh-&1&dk&2@2012] fnukad 08-05-2012 ftlds }kjk 8d dks lekIr djrs gq, T;s"Brk fu;ekoyh 1991 ds izkfo/kkuks ds vuqlkj fu/kkZfjr djus ds vkns'k fn;s x;s gSA mDr vkns'kks ds dze esa fuEukuqlkj ofj"Brk lwph fu/kkZfjr dh tkrh gS%& ifj;kstuk vfHk;Urk ¼flfoy½ dz- la-
Ukke dksM la[;k tUe frfFk laoxZ eas ekSfyd fu;qfDr dh frfFk orZeku in ij ;ksxnku dh frfFk oxZ izksUufr@lh/kh HkrhZ
1.
Jh ekS0 b'kjr 1884 15/12/1957 AE 15/07/1985 ¼iSfrZd foHkkx½ 30/03/1998 ¼lafofy;u½ 09/06/2006 LkkekU;
inksUufr
2. Jh lekdkUr JhokLro 2609 01/12/60 AE 09/08/1985 ¼iSfrZd foHkkx½ 27/08/2004 ¼lafofy;u½ 09/06/2006 lkekU;
inksUufr 3 Jh ,l0lh0 vjksM+k 538 10/07/61 JE 26/12/1979 APE 21/01/1989 29/01/2002 LkkekU;
inksUufr The petitioner Shri S. C. Arora has preferred this writ petition on being aggrieved of the aforesaid seniority list dated 09.05.2014 and has challenged the same essentially on the following grounds:-
(i) That the judgment of the Hon'ble Supreme Court dated 27.04.2012 was only in relation to the persons who had been promoted under Rule 8-A of the Rules of 1991 and the said judgment in no way affects the seniority of the persons who were promoted without aid and assistance of Rule 8-A. According to the petitioner, when neither he nor the private respondents were given the benefit of the Rule 8-A by the Authority, the settled seniority list was not to be re-opened qua him and the private respondents on the basis of the said judgment dated 27.04.2012. It is also contended that even in regard to the said decision of the Hon'ble Supreme Court, though the respondents have considered the Government Order dated 08.05.2012 but have not considered another Government Order dated 13.05.2012 whereby and whereunder, the seniority of the petitioner vis-a-vis the respondents stood protected.
(ii) That the claim of the private respondents for seniority over the petitioner had already been rejected by the Committee constituted by the Authority in its meeting dated 14/15.05.2009; and thereafter, final seniority list was published on 27.07.2009. The said final seniority list dated 27.07.2009 having not been challenged by the respondents at the relevant time and the same having attained finality, there was no occasion to re-open the same.
(iii) That even the seniority list dated 02.06.2006 was published after dealing with the objections of the private respondents and in pursuance of the order dated 31.03.2006 passed by this Court; and the said list was not only accepted by the respondents but was further reaffirmed by this Court in the judgment dated 03.07.2007. Thus, the respondents had no right to claim further revision of the seniority.
(iv) That the promotion policy of the year 2005 is inapplicable to the case of the petitioner in as much as he was promoted as Project Engineer in the year 2002 according to the policy of the year 1993. Moreover, at the time of promotion of the petitioner, there was only one vacancy available in the cadre of Project Engineer in promotion quota. According to the petitioner, the private respondents, when promoted to the post of Project Engineer in the year 2006, cannot claim seniority on that post for the reason at the relevant time of his promotion, no vacancy for their promotion was available at all.
The petitioner has also taken a ground in the writ petition that he was not afforded opportunity of hearing while issuing the impugned seniority list dated 09.05.2014 but it has come on record that the petitioner as also the private respondents were afforded hearing before issuing the said list; and this ground as such has not been pressed on behalf of the petitioner.
This matter was considered at the initial stage on 19.05.2014 by a coordinate Bench and preliminarily taking note of the submissions of the parties and expressing prima facie doubts on the validity of the action of the respondents, this Court, while granting time to the parties to file pleadings, stayed the operation of the impugned list/order dated 09.05.2014.
The official respondents i.e. respondents nos.2 and 3 in their counter have justified the impugned action essentially with the submissions that on the given facts and for the orders passed by this Court on 31.03.2006 and 03.07.2007, the position obtaining had been that the respondents nos.4 and 5, who had initially joined in their respective parent departments on 15.07.1985 (Shri Mohd. Ishrat) and 09.08.1985 (Shri Samakant Srivastava), and who had been serving in regular and substantive capacity in their parent departments, upon absorption as deputationists, were entitled to the benefit of their past serves and consequential seniority on that basis. It is submitted that the petitioner joined on the post of Assistant Project Engineer only on 21.01.1989 and, as per the Recruitment and Promotion Policy, 2005, when the post of Project Engineer is to be filled in 100% by promotion from the single feeding cadre of Assistant Project Engineer, the private respondents, who were to rank senior in the feeding cadre, were entitled to regain their seniority after promotion to the post of Project Engineer. It is also submitted that as against the seniority list dated 24.12.2008, the objection was indeed filed by the respondent no.5, but then, notwithstanding his contentions, the seniority list dated 27.07.2009 came to be issued.
It has further been submitted that the private respondents had submitted the representations dated 14.10.2009, 26.08.2010, 12.01.2011, 12.07.2011 and 12.07.2012 against the list dated 27.07.2009 but, before taking final decision on such representations, Government Order dated 08.05.2012, for taking remedial action in terms of the Hon'ble Supreme Court judgment dated 27.04.2012, was received and hence, a Committee was constituted under the orders of the Chief Executive Officer.
According to the official respondents, as regards the representations of the private respondents, the decision whereupon was also pending, the prime issue before the Committee was to examine as to whether the directions of this Court in the order dated 03.07.2007 had been complied with in letter and spirit. It is submitted that ultimately, the Committee of the senior officers recommended to the competent authority for revision of the seniority list dated 27.07.2009 but before such recommendations could received attention of the competent authority, the petitioner also submitted a representation that for the reason of his having received promotion on the post of Project Engineer (Civil) prior to the date of promotion of the respondents nos.4 and 5, he was entitled to rank senior.
It is submitted that before issuing the seniority list dated 09.05.2014, all such representations made by the petitioner and by the respondents nos.4 and 5 were duly considered and they were also granted oral hearing, which fact the petitioner has suppressed.
It is also submitted that the seniority list had not been reopened only on the representations made by the respondents nos.4 and 5, but was also recommended to be reconsidered on the basis of this Court's order dated 03.07.2007. These respondents have particularly referred to the opening paragraph of the impugned list/ order dated 09.05.2014 in this regard. It is submitted that for total and effective compliance of the order dated 03.07.2007 passed by this Court in Writ Petition No. 8756 of 2007, the seniority list dated 27.07.2009 was required to be corrected. According to the official respondents, the aspect of revision of seniority list pursuant to the decision of Hon'ble Supreme Court dated 27.04.2012 (supra) had been an additional one and not the lone factor. In the words of the respondents, "the revision that was carried out in the seniority list of Project Engineer was in compliance of the order passed by the Hon'ble Supreme Court and also the earlier order dated 03.07.2007 passed by the High Court".
The private respondents have also filed a detailed counter affidavit with the submissions that as per the Promotion Policy 1993, the post of Project Engineer was to be filled in 66% through promotion and 34% through direct recruitment/ deputation; and in the case of petitioner's promotion, Rule 6 of the Rules of 1991 shall apply according which, he will be placed as per his initial date of appointment in his feeding cadre i.e., the cadre of Assistant Project Engineer; and he is more than three years junior to respondents nos. 4 and 5 in the feeding cadre.
It is further submitted that the post of Project Engineer is to be filled 100% through promotion from Assistant Project Engineer cadre as per the Recruitment & Promotion Policy of 2005 and therefore, again, Rule 6 will apply, whereby the seniority for such kind of posts which are to be filled 100% through promotion will be determined from date of seniority in the feeding cadre; and therefore, as per Promotion Policy of 2005 too, the respondents nos. 4 and 5 are senior to petitioner, he being more than three years junior to them in the feeding cadre.
It is further submitted that the final seniority list dated 27.07.2009 was published in utter disregard of the order of this Court and the respondents nos.4 and 5 were not given any hearing on their representations dated 26.12.2008; and no reason was assigned for disposal of their representations and before issuance of the final seniority list dated 27.07.2009; and hence, this final seniority list dated 27.07.2009 was issued in utter violation of the principles of natural justice.
The respondents nos. 4 and 5 have further submitted that as soon as they came to know about the issuance of the final seniority list dated 27.07.2009 from other sources on 14.10.2009, as it was not circulated to them, they immediately submitted the representation dated 14.10.2009 (Annexure - C.A.-14) stating that they had not been given the chance of hearing and final seniority list was not circulated to them and besides that, in this final seniority list, the dates of their initial appointment in the feeding cadre were not correctly mentioned, as had been given to them in the final seniority list dated 02.06.2006 and affirmed by this Court in the order dated 03.07.2007 in Writ Petition No.8756 of 2007 as also by the Hon'ble Apex Court in the order dated 03.12.2007 in S.L.P. No. 22095 of 2007.
It is further submitted by the respondents that ultimately, the Chief Executive Officer constituted a 5 members Committee by the order dated 12.01.2012 headed by Sri Anil Raj Kumar, Additional Chief Executive Officer, whose meeting was held on 30.01.2012 and recommendations were prepared and were signed by all members except Shri Anil Raj Kumar, Additional Chief Executive Officer, who could not sign probably due to code of conduct of state assembly election of 2012, and later on, he was transferred. According to the private respondents, this Committee had recommended that seniority list dated 27.07.2009 be revised in compliance of the Hon'ble High Court of Allahabad order dated 03.07.2007 in Writ Petition No. 8756 of 2007 and dismissal order of SLP No. 22095 of 2007 of Hon'ble Supreme Court; and Shri Mohd. Ishrat, Shri Samakant Srivastava and Shri Kalu Ram Verma be given seniority of their parent department as directed by the Hon'ble Court. Therefore, according to the respondents, the contention of the petitioner that no steps were taken by them to challenge the seniority list dated 27.07.2009 is totally misleading.
It is further submitted that none of the service regulations viz., 'NOIDA Service Regulation 1981', ''Uttar Pradesh Government Servant Seniority Regulation 1991' and 'NOIDA Recruitment & Promotion Policy of 1993 and 2005 speaks about the forum to represent against the final seniority list nor prohibits the correction of the incorrect seniority date and order mentioned in final seniority list once published. It is yet further submitted that as per clause 21 of the General Clauses Act, 1897, when the Government/Authority has the power to issue some order then, that power includes a power to add to, amend, vary or rescind any order and that is why the respondents nos. 4 and 5 represented to the authority who had issued the final seniority list dated 27.07.2009 in violation of the Hon'ble High Court order dated 03.07.2007 and Hon'ble Apex Court order dated 03.12.2007.
It is also pointed out that looking to the Court's view during the hearing of this petition on 19.05.2014, the respondents nos. 4 and 5 have now challenged the final seniority list dated 27.07.2009 by way of Writ Petition No. 31743 of 2014, which stands connected with this petition.
These respondents have refuted the contention of the petitioner that he was not afforded opportunity of hearing and have submitted that this contention of the petitioner is totally misleading inasmuch as the Authority had issued the letter dated 26.09.2012 (Annexure-CA-19) to all the employees of engineering wing along with other employees also, who were given chance of oral hearing on their representations against the tentative seniority list dated 06.08.2012/ 24.08.2012 on 05.10.2012. Then, the petitioner and the respondents nos.4 and 5 were called for another joint hearing on 13.01.2014 by the letter dated 10.01.2014 (Annexure - CA-20), issued to all the Project Engineer (Civil).
The respondents submit that the final seniority list dated 27.07.2009 was having error in 'initial date of appointment in the cadre' of the respondents nos. 4 and 5 as it was changed from 15.07.1985 to 30.03.1998 and from 09.08.1985 to 27.08.2004; and hence, it was not the case of reopening of the seniority list dated 27.07.2009, rather it was correction of the error that had occurred in mentioning the 'initial date of appointment' of the respondent nos.4 and 5 contrary to the orders of this Court; and there is no prohibition in any of the applicable Regulations against such correction of obvious errors.
We have heard the learned counsel for the parties at length and have scanned through the record.
Having given thoughtful consideration to the rival submissions and having examined the record, we are of the view that even when some of the contentions of the petitioner remain untenable, the decision forming the basis of recasting the seniority of the petitioner and the respondents Nos. 4 and 5 cannot be approved; and, in the interest of justice, it appears rather necessary that the matter is re-considered by the Committee concerned on the relevant issues between the parties.
As the facts have surfaced on record, it is apparent that for and against the seniority list dated 27.07.2009, the representations and objections were taken up for consideration by the Committee constituted under the chairmanship of the Deputy Chief Executive Officer, as stated in its minutes dated 13.01.2014 (Annexure-SCA-2 in the supplementary counter affidavit on behalf of the private respondents) but these minutes, said to be forming the basis of the impugned list dated 09.05.2014, are found wanting in several relevant aspects. However, before dealing with the aspects relating to the minutes dated 13.01.2014, it appears appropriate to examine the other contentions urged on behalf of the petitioner.
With a detailed reference to the judgement of the Hon'ble Supreme Court dated 27.04.2012, it has been contended that recasting of seniority could have been considered only in relation to such cases of promotion, which were granted with the aid of Rule 8-A and as neither the petitioner nor the private respondents belong to any reserved category, there was no occasion to recast the seniority on the basis of the said decision. The contention remains rather misplaced and deserves to be rejected.
On a bare look at the proceedings of the Committee dated 13.01.2014,as also the opening paragraph of the impugned order/list dated 09.05.2014, it is apparent that it had been a composite exercise for recasting the seniority with reference to the aforesaid decision of the Hon'ble Supreme Court dated 27.04.2012, (which related to the persons belonging to reserved category), as also with reference to the decision of this Court dated 03.07.2007, which had been affirmed by Hon'ble Supreme Court, whereby and whereunder, the private respondents were to get the benefit of their past services in the parent department. From the material placed on record, it is also apparent that the complaint of the private respondents had always been that the seniority list dated 27.07.2009 was issued without affording them adequate opportunity of hearing and without taking into consideration the full effect and implication of the order dated 03.07.2007, passed by this Court, pronouncing on their rights for the purpose of reckoning the seniority.
A singular significant feature is sufficient to find that there had been things amiss in the list dated 27.07.2009. It is that though in the tentative list preceding the same i.e., the list dated 23.12.2008, the particulars of the respondents No. 4 and 5 were distinctly stated with dates of their appointment as Assistant Engineer, as also the dates of absorption in the column relating to the ''initial date of appointment in the cadre', yet, the particulars in the final list dated 27.07.2009 were altered and their dates of initial appointment as Assistant Engineer were omitted altogether; and only the dates of their absorption were shown. Noteworthy it is to that even in the previous list dated 02.06.2006, the initial dates of appointment of private respondents as Assistant Engineer were distinctly mentioned. This omission of the dates of initial appointment of respondents nos.4 and 5 as Assistant Engineer in the final list dated 27.07.2009 remains entirely inexplicable. It appears that the authorities concerned, while issuing the list dated 27.07.2009 entertained the doubt that if the dates of initial appointment of respondents No. 4 and 5 as Assistant Engineer were shown, they were likely to be placed above the petitioner in the seniority and such a result was to be avoided.
We would hasten to observe that we are not pronouncing finally on the validity or otherwise of the list dated 27.07.2009, but the foregoing observations are only to indicate that the list dated 27.07.2009, not carrying the relevant and material particulars having bearing on seniority, cannot be considered a fait accompli. In the given set of facts, the present one cannot be considered to be a case of mere reopening of the finalised seniority list, but appears to be a case of the Authority attending on such grievances of the employees, which could not have been dubbed as entirely baseless.
We need not dwell much into the facts about formation of review Committee under the chairmanship of the then Additional Chief Executive Officer on 12.01.2012 and such Committee having prepared the recommendations dated 30.01.2012, which could not be signed by the chairman of the committee and other co-related facts. However, this much is clear from the material on record that immediately after coming to know about the final seniority list dated 27.07.2009, the private respondents had questioned the same and followed up with several representations, whereupon a review Committee was indeed constituted.
It appears that while the matter remained to be finalised by such review Committee, the Government Order dated 08.05.2012 was received for the purpose of giving effect to the directives of the Hon'ble Supreme Court in the judgement dated 27.04.2012, which was followed by another Government Order dated 13.05.2012. Of course, this process was essentially in relation to the persons related with Rule 8-A of the Rules of 1991, but in the present matter, it appears that a composite, but two-fold, exercise for revision of the seniority list was taken up so as to give effect to the principles and directions in the order of this Court dated 03.07.2007 as also the judgement of the Hon'ble Supreme Court dated 27.04.2012.
The petitioner has unnecessarily attempted to mix up these two aspects i.e., one of giving full effect to the directions of Hon'ble Supreme Court in the order dated 27.04.2012 and another of giving effect to the principles in the order dated 03.07.2007 in this writ petition. As noticed, the preamble of the order dated 09.05.2014 makes it clear that the list had also been recast with reference to the order of this Court dated 03.07.2007, apart from the judgement of the Hon'ble Supreme Court dated 27.04.2012.
For what has been discussed hereinabove, we are clearly of the view that the exercise as undertaken by the official respondents for revision of seniority list qua the petitioner and the private respondents, cannot be set at naught merely and only for the reason that the list dated 09.05.2014 also refers to the decision of the Hon'ble Supreme Court dated 27.04.2012.
However, even after finding untenable the aforementioned contentions of the petitioner, we are of the view that the decision dated 13.01.2014, which forms the basis of the list dated 09.05.2014 cannot be approved straight away, particularly when it appears that some of the material contentions of the parties have not been adequately attended at. The petitioner had raised the objections that the concluded seniority list dated 27.07.2009 could not have been reopened. It is not indicated in the said minutes as to how this contention was at all dealt with. The petitioner has also to contend that he got the promotion in the year 2002 under the Promotion Policy of the year 1993 only on merit basis, whereas the private respondents got the promotion in the year 2006. According to the petitioner, when the private respondents got the promotion under the Policy of the year 2005, they cannot rank senior to him and his promotion under the policy of 1993 is to remain unaffected. The petitioner has yet further contention to urge that in the year 2002, when he was promoted, there was no further post of promotion quota available; and at the relevant time, the post of Project Engineer was to be filled up 66% by promotion and 34% by direct recruitment. Per contra, the private respondents have questioned the rights claimed by the petitioner on the basis of his promotion in the year 2002. We are not pronouncing finally on these contentious issues but it is apparent that the relevant contentions of the parties, having effect on their seniority placement, have not been properly considered by the Committee concerned. A corollary question as to whether the principles contained in the guidelines, of regaining of seniority in the promotional cadre, is applicable to the post of Project Engineer has also not been examined. In other words, as to whether the principles contained in clause 7 of 1993 promotion policy and clause 8 of 2005 promotion policy would at all apply to the case of the petitioner and the private respondents needs to be examined.
Apart from the above, the petitioner has also contended, as taken note of in the minutes dated 13.01.2014, that the private respondents came to the Authority on their own requests and they were receiving pension from their parent department and hence, were not entitled to claim double benefit for their services of the parent department. The petitioner has also contended that the respondent no.5 was absorbed in the Authority only in the year 2004 as Assistant Project Engineer and it would be highly improper to grant him seniority of the year 2002 on the post of Project Engineer.
A look at the consideration of the Committee in its minutes dated 13.01.2014 makes it clear that the Committee essentially proceeded on the decision in Writ Petition No. 16353 of 2006; and on the fact that the private respondents had been working as Assistant Engineer before the petitioner Shri S. C. Arora as also another incumbent Shri S. K. Gupta; and further on the order dated 03.07.2007, passed by this Court in Writ Petition No.8756 of 2007. The Committee also observed that while granting promotions to the petitioner and the said Shri S. K. Gupta in the year 2002, had the seniority list been published and objections invited, the private respondents would have got justice at that stage itself. These had been the major observations and considerations of the Committee for recommending grant of seniority to the private respondents over the petitioner and the said Shri S. K. Gupta. On the contentious issues as raised by the parties, we are unable to find categorical and specific findings in the said minutes dated 13.01.2014. The relevant part of the minutes dated 13.01.2014 reads as under:-
"lfefr }kjk Jh ekS0 b'kjr vius iSr`d foHkkx esa fnukWd 15&07&1985 ls lgk;d vfHk;Urk rFkk Jh lekdkUr JhokLro vius iSr`d foHkkx esa fnukad 09&08&1985 ls lgk;d vfHk;Urk ds in ij dk;Zjr gSa tks ukS,Mk ds lgk;d ifj;kstuk vfHk;Urk ds in ds leku gS tcfd Jh ,l0lh0vjksM+k dh voj vfHk;Urk ls inksUufr lgk;d ifj;kstuk vfHk;Urk ds in ij fnukWd 21&01&1989 dks gqbZ rFkk Jh ,l0ds0xqIrk dh voj vfHk;Urk ls inksUufr fnukWd 31&01&1992 dks lgk;d ifj;kstuk vfHk;Urk ds in ij gqbZA Jh ekS0 b'kjr us ukS,Mk izkf/kdj.k esa lgk;d ifj;kstuk vfHk;Urk ds in ij izfrfu;qfDr ij fnukWd 02&07&1994 ls dk;Zjr gS rFkk Jh lekdkUr JhokLro us ukS,Mk izkf/kdj.k esa lgk;d ifj;kstuk vfHk;Urk ds in ij izfrfu;qfDr ij fnukWd 10&08&2001 ls dk;Zjr gS rFkk Jh ekS0 b'kjr dk LFkkbZ lafofy;u ukS,Mk izkf/kdj.k esa fnukWd 30&03&1998 dks fd;k x;k rFkk Jh lekdkUr JhokLro dk LFkkbZ lafofy;u fnukWd 27&08&2004 dks fd;k x;kaA Jh ,l0lh0 vjksM+k dh inksUufr lgk;d ifj;kstuk vfHk;Urk ls ifj;kstuk vfHk;Urk ds in ij fnukWd 29&01&2002 dks gqbZ Fkh rFkk Jh ,l0ds0 xqIrk dh inksUufr lgk;d ifj;kstuk vfHk;Urk ls ifj;kstuk vfHk;Urk ds in ij fnukWd 03&03&2002 dks gqbZ Fkh rnle; Jh ekS0 b'kjr ,oa Jh lekdkUr ukS,Mk izkf/kdj.k esa dk;Zjr FksA Jh vjksM+k ,oa Jh xqIrk dh inksUufr djus ls iwoZ vuafre ofj"Brk lwph tkjh dj vkifRr;k¡ ekaxk tkuk U;k;laxr Fkk ysfdu izkf/kdj.k }kjk rRle; ,slk ugha fd;k x;k ;fn vuafre ofj"Brk lwph o"kZ 2002 esa tkjh dh tkrh rks rRl;e gh budk fujkdj.k dj fy;k tkrk rFkk Jh ekS0 b'kjr ,oa Jh lekdkUr dks rRle; gh U;k; fey tkrk A Jh ekS0 b'kjr fnukWd 15&07&1985 ls lgk;d vfHk;Urk gSa rFkk Jh lekdkUr JhokLro fnukWd 09&08&1985 ls lgk;d vfHk;Urk gSa tcfd Jh ,l0lh0 vjksM+k dh inksUufr voj vfHk;Urk ls lgk;d ifj;kstuk vfHk;Urk ds in ij fnukWd 21&01&1989 dks dh x;h Fkh rFkk Jh ,l0ds0xqIrk dh inksUufr voj vfHk;Urk ls lgk;d ifj;kstuk vfHk;Urk ds in ij fnukWd 21&01&1992 dks dh x;h FkhA ;kfpdk la[;k 8756@2007 ,oa ;kfpdk la[;k 9909@2007 esa fnukWd 03&07&2007 dks mijksDr lHkh rdksZa ij fopkj djus ds mijkUr izLrqr izdj.k esa ek0 mPp U;k;ky; }kjk fuEufyf[kr vkns'k ikfjr fd;s%& "As we have already held that past service of deputationists-respondents rendered in their parent department/organisation on the equivalent post prior to joining their post in the service of the Authority on deputation shall be computed towards length of their service for the purpose of determination of their seniority on their respective category of posts."
Jh ekS0 b'kjr ,oa Jh lekdkUr JhokLro] Jh ,l0lh0 vjksM+k ,oa Jh ,l0ds0 xqIrk ls iwoZ ls lgk;d vfHk;Urk ds in ij dk;Zjr FksA vr% ek0 U;k;ky; ds mDr vkns'k ds vkyksd esa T;s"Brk dze esa Jh ekS0 b'kjr] Jh lekdkUr JhokLro] Jh ,l0lh0 vjksM+k ,oa Jh ,l0ds0xqIrk gSA vr% ek0 mPp U;k;ky; bykgkckn ,oa ek0 mPpre~ U;k;ky; ,oa Jh jfoUnz dqekj vf/koDrk vkWu fjdkMZ+ ek0 loksZPp U;k;ky; dh fof/kd jk; ,oa 'kklukns'k dks n`f"Vxr j[krs gq, lfefr Jh ekS0 b'kjr ,oa Jh lekdkUr JhokLro dks dze'k% Jh ,l0lh0 vjksM+k ,oa Jh ,l0ds0xqIrk ls igys ifj;kstuk vfHk;Urk ¼flfoy½ dh ofj"Brk lwph esa vafdr djus dh laLrqfr djrh gSA"
Hence, when the decision of the Committee dated 13.01.2014 on the competing claims of the petitioner and the respondents nos.4 and 5 cannot be said to be a considered decision on all the relevant and material aspects, we are unable to approve the same.
For what has been discussed hereinabove, and in the totality of circumstances, we are of the view that interest of justice shall be served if, while continuing with the stay order passed in this case on 19.05.2014 over the operation of impugned list dated 09.05.2014, the matter is remitted for reconsideration by the concerned Committee of the respondent Authority and thereafter, for taking of a final decision by the respondent Authority in accordance with law.
Writ Petition No. 31743 of 2014 As noticed, one of the principal submissions of the petitioner of Writ Petition No. 26922 of 2014 has been that the seniority list dated 27.07.2009 had attained finality for having not been challenged in the appropriate forum at the appropriate stage; and hence, the same could not have been re-opened. This contention was indeed taken note of at the preliminary hearing of Writ Petition No. 26922 of 2014 and this Court expressed prima facie doubt on the validity of the action of the official respondents in re-opening the finalized seniority list. It has been in this backdrop of facts and events that the private respondents of Writ Petition No. 26922 of 2014 have filed this independent petition, seeking to question the seniority list dated 27.07.2009, essentially on the same grounds and contentions as put forth in opposition of Writ Petition No. 26922 of 2014. In this petition, filed by Shri Samakant Srivastava as petitioner no. 1 and Shri Mohd. Ishrat as petitioner no. 2, the official respondents have, inter alia, submitted that the grievance against the list dated 27.07.2009 stands redressed for the subsequent action taken by them and with issuance of the seniority list dated 09.05.2014. On the other hand, the private respondent herein Shri S.C. Arora has opposed this writ petition essentially on the same submissions that are the grounds of attack in his writ petition. Additionally, the very claim of the present petitioners, as regards their dates of initial entry in the grade, has also been questioned besides the objection on delay and laches.
As regards the question of delay and laches, when obvious it is that these incumbents Shri Samakant Srivastava and Shri Mohd. Ishrat had taken objection against the list dated 27.07.2009 in the month of October 2009 and had followed it up with other representations; and when the Authority itself had taken up the matter for re-consideration by constituting the Committee for the purpose, it cannot be said that these incumbents had been negligent or wanting in due diligence. In fact, this writ petition is only a fall out of, rather counter-blast to, the contentions urged in Writ Petition No. 26922 of 2014. Be that as it may, for the view which we have taken while dealing with Writ Petition No. 26922 of 2014; and when the matter is being remitted for consideration of the unattended objections, it does not appear necessary to separately deal with the contentions urged in Writ Petition No. 31743 of 2014. Suffice it to observe that all the objections and contentions of the parties, except which have been dealt with and pronounced upon in the discussion foregoing, shall be open to be raised in the proceedings for re-consideration, to be taken up pursuant to the directions in this order.
CONCLUSION Accordingly, while continuing with the stay order dated 19.05.2012 passed in Writ Petition No. 26922 of 2014 until decision afresh, the official respondents are directed to re-examine the matter on the question of seniority, only to the extent of the contesting parties herein; and then to pass appropriate orders in accordance with law. It is made clear that the stay over operation of the order/list dated 09.05.2014 shall continue to remain in operation only until decision of the matter afresh.
For the purpose of carrying out the requirement of this order, it is also expected of the official respondents to convene the meeting of the Committee at the earliest; and the Committee would be expected to take a decision after due opportunity of hearing to all the contesting parties; and with a speaking order while dealing with the material contentions of the parties and while keeping in view the observations herein.
The writ petitions stand disposed of with the directions and requirements foregoing.
Order Date :- 23.09.2014 Mustaqeem.
(Dinesh Maheshwari, J.) (S. K. Singh, J.) *************************