Allahabad High Court
Sri Pradeep Kumar Garg, Assistant ... vs State Of U.P. Through Its Industrial ... on 3 July, 2007
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT
V.M. Sahai and Sabhajeet Yadav, JJ.
1. As identical questions of fact and law being involved in both the above noted writ petitions, we, therefore, propose to decide them together by common order. The petitioners of first writ petition have sought relief for quashing the seniority list dated 2.6.2006 drawn by respondent No. 2. A further writ in the nature o!" mandamus have been sought for directing the respondent No. 2 to implement the seniority list dated 16.3.2006 and issue promotion orders in pursuant to the said seniority list dated 16.3.2006 and to cancel the promotions of respondents No. 3 and 4 as Project Engineer and revert them to their respective posts.
2. Relief sought in the writ petition rests on the facts that the New Okhla Industrial Development Authority (respondent No. 2) (hereinafter referred to as the Authority) has been constituted in exercise of power under Section 3 of the LJ.P. Industrial Area-Development Act, 1976, in brief the Act, 1976. The petitioners were appointed and confirmed as Junior Engineer on 26.12.79, 7.1.80, 6.3.80, 8.12.89 and 8.12.89 respectively with the respondent No. 2. The respondent No. 2 is having their administrative office at NOIDA District Gautam Budh Nagar (U.P.). In exercise of power under Section 19 of the Act 1976 a statutory rule namely the New Okhla Industrial Development Authority Service Regulations 1981 (hereinafter referred to as ' Service Regulation 1981') has been framed which regulates the recruitment of employees and their other service conditions. According to the petitioners' case, the respondent No. 2 published a seniority list of Junior Engineers on 24.3.1982 and in the said list the petitioners have been placed at SI. No. 17,19 and 22 respectively. The respondent No. 2 in the year 1989 promoted those Junior Engineers who were junior to the petitioners which was challenged by the petitioners by way of filing the claim petition bearing No. 386/F/III/91 before the Uttar Pradesh Public Services Tribunal No. III, Lucknow and vide order dated 29.6.1992 the seniority list dated 24.3.1982 has been confirmed. A true copy of the order dated 29.6.1992 passed by U.P. Public Services Tribunal, Lucknow is on record as Annexure-P-3 of the writ petition. The said order has not been modified and set aside by any court till date and hence, the list mentioned herein above was the final seniority list. However, the respondent No. 2 has filed writ petition No. 37864/1992 before High Court, Allahabad against the order dated 29.6.1992 passed by the U.P. Public Services Tribunal, Lucknow and the same is still pending before the Hon'ble High Court At Allahabad and no stay has been granted in the said petition. The respondent No. 2 promoted the petitioners on the post of Assistant Project Engineer from Junior Engineer post with effect from 6.3.1993 pursuant to final seniority list. The respondent No. 2 thereafter, published a tentative seniority list of Assistant Project Engineers on 19.4.2004 and invited objections on the said tentative list and after considering the relevant regulation and objections filed against it, has confirmed vide final seniority list dated 16.3.2006, a copy of which is on record as Annexure-P-4, It is staled in para 11 o\ the writ petition that the petitioners have no grievances with regard to seniority list drawn by respondent No. 2;on 16.3.2006. In the said seniority list the petitioners have been shown in the category of Assistant Project Engineer (Civil) at serial No. 8 and 10 respectively whereas the respondents No. 3 and 4 have been shown at serial No. 17 and 22 respectively.
3. Feeling aggrieved against the aforesaid seniority list dated 16.3.2006 the respondents No. 3 and 4 has filed a writ petition bearing No. 16353/2006 before this Court seeking relief for quashing the aforesaid seniority list dated 16.3.2006 and further relief in the nature of mandamus was sought for to place the respondents No. 3 and 4 at serial No. 3 and 4 respectively in the seniority list dated 16.3.2006 with effect from 12.6.1985 and 17.7.1985 respectively. The aforesaid writ petition filed by respondents No. 3 and 4 was disposed of by this Court vide order dated 31.3.2006 with the observation that the seniority of respondents No. 3 and 4 shall be determined in the light of representation offered by them as to whether their past services in parent department shall be counted for their seniority. In the light of aforesaid observation a fresh seniority list was to be prepared and the impugned seniority list dated 16.3.2006 has been quashed.
4. The petitioners being aggrieved by the aforesaid order have preferred Special Leave Petition before Hon'ble Apex Court. Hon'ble Apex Court has been pleased to dismiss the Special Leave Petition No. 9849/2006 vide order dated 7.7.2006 with the observation that since the seniority list has already been revised thus the petitioners would be at liberty to challenge the revised seniority list as well as consequential promotions. In pursuance of the aforesaid order of Hon'ble Apex Court the petitioners have submitted their representation to the respondent No. 2, however, the said representation has been kept aside and asked the petitioners to approach to this Court for their redressal as revised seniority list has been drawn by respondent No. 2 on 2.6.2006 in response to direction given by this court. A copy of Minutes of Meeting dated 26.5.2006 is on record as Annexure-7 of the writ petition. It is further stated that without circulating the seniority list dated 2.6.2006 the respondent No. 2 promoted the respondents No. 3 and 4 as Project Engineer vide promotion order dated 9.6.2006. It has been stated in the writ petition that the respondents No. 3 and 4 have made an application before the respondent No. 2 for seeking their absorption with the respondent No. 2 against the post lying vacant which are falling under the category of direct recruitment, in response to the application dated 17.9.1994 of the respondent No. 3, the respondent No. 2 absorbed the respondent No. 3 vide order dated 28/30.3.1998. A copy of the application dated .17.9.1994 is on record as Annexure-8 of the writ petition. No condition was laid down at the time of absorption by the respondent No. 2 that their past service will be considered for the seniority. The respondent No. 4 made an application on 27.3.2003 before the respondent No. 2 that certain direct recruitment posts are lying vacant with the respondent No. 2 thus, he may be absorbed against the same. A copy of the said application dated 27.3.2003 is on record as Annexure-9 of the writ petition. The application for absorption as well as order for absorption do not mention the compilation of past services for the purpose of determination of seniority. The respondent No. 2 keeping in view their date of absorption as their date of appointment in the respondent No. 2, they have been placed at serial No. 17 and 22 respectively in the seniority list drawn on 16.3.2006. Since, there was no condition imposed by the respondent No. 2 and Respondent No. 4 at the time of seeking o\' absorption with the respondent No. 2 thus, they have waived their claim of the past services rendered in their parent department.
5. It is further slated in the writ petition that the Committee constituted by respondent No. 2 was to reconsider the entire seniority list dated 16.3.2006 considering the representation made by the employees from time to time and adhering the law of the present day. The committee did not consider the representations of the petitioners and other employees as well as regulations at the time of drawing the revised seniority list dated 2.6.2006. The committee had simpliciter placed respondents No. 3 and 4 in the revised list dated 2.6.2006 at serial No. 3 and 4 without appreciating the fact that as per their terms of the absorption with the respondent No. 2. The respondents No. 3 and -I have forgiven their claim regarding their past services at the time when they were seeking the absorption with the respondent No. 2 and the ratio decided in the S.I. Roop Lal's case is not applicable in the case of the respondents No. 3 and 4 herein. It is relevant to mention here that the committee has not followed the directions in true sense as they have failed to consider the decision rendered by the Hon'ble Supreme Court of India in Indu Sheker Singh and Ors. v. State of U.P. and Ors., wherein the Hon'ble Supreme Court of India has held that seniority is not a fundamental rights and it is merely a civil right, if the seniority is a civil right in that eventuality the respondents No. 3 and 4 have forgiven their claim regarding their past service with their parent department at the time of seeking absorption in the services of respondent No. 2. It is further stated that the petitioners have preferred their representations on 28.8.2006 and 19.9.2006 in pursuance to the directions given by the Hon'ble Supreme Court in the Special Leave Petition bearing No. 9849/06. A copy of the representation dated 28.8.2006 and 19.9.2006 are on record as Annexure-10. But the respondent No. 2 till date has not decided their representation dated 28.8.2006 and 19.9.2006. Thus the petitioners being aggrieved by the said revised list dated 2.6.2006 preferred the present writ petition.
6. A detail counter affidavit has been filed on behalf of respondent No. 2 by Sri Jai Prakash Singh posted and working as Deputy General Manager (Personnel) in Noida wherein while giving parawise reply of the writ petition in para 3,4 and 5 of the counter affidavit it has been stated that the respondents No. 3 and 4 filed a writ petition No. 16353/06 challenging the final seniority list dated 16.3.2006. The aforesaid writ petition was finally decided by this Court on 3 1.3.2006 whereby the seniority list dated 16.3.2006 has been quashed and a direction was issued to prepare fresh seniority list. Against the aforesaid order the petitioners preferred Special Leave Petition before Hon'ble Apex Court being SLP No. 9849/2006 which was decided on 7th July 2006. h is further stated that before the aforesaid order was passed by Hon'ble Apex Court the respondent No. 2 in compliance of direction of this Court dated 31.3.2006 prepared, the1 seniority list dated 2.6.2006. However, on receipt of the order passed by Hon'ble Apex Court, the Chief Executive Officer, Noida has decided the representation of petitioners vide order dated 31.3.2007. A copy of the order dated 31.3.2007 is on record as Annexure-C.A.-l to the affidavit. By this order the representation of petitioners has been rejected and the seniority list dated 2.6.2006 has attained finality and as such the petitioners cannot challenge the same. In para 6 and 7 of the counter affidavit it is stated that fun her promotion had already been made pursuant to seniority list dated 2.6.2006 and there is no illegality or infirmity in the seniority list dated 2.6.2006 warranting any interference under Article 226 of the Constitution.
Another counter affidavit and supplementary counter affidavit have also been filed by Sri Mohd. Israt, Assistant Project Engineer, NOIDA on behalf of respondents No. 3 and 4, whereby the petitioners assertions made in the writ petition have been disputed and denied and attempt has been made to justify the action taken by Noida challenged in the writ petition. The petitioners have filed rejoinder affidavit and also amendment application whereby they challenged the order dated 31.3.2007 contained in counter affidavit filed by respondent No. 2.
7. In connected writ petition No. 9909/07 filed by Sh. Babu Ram relief of certiorari for quashing the impugned seniority list dated 2.6.2006 drawn by respondent No. 2 has been claimed and further relief in the nature of mandamus has been sought for directing the respondents No. 1 and 2 not to proceed with the promotion to the post of Project Engineer (Civil) on the basis of impugned seniority list and place the petitioner at sr. No. 19 in the seniority list as given in the seniority list dated 16.3.2006 prepared and published by respondent No. 2. The aforesaid relief sought in the writ petition rests on the facts that the petitioner was initially appointed as Junior Engineer (Civil) on 4.12.1989 against a reserved vacancy with the respondent No. 2 organization and the respondent No. 4 was initially appointed as Junior Engineer (Civil) in U.P. State Industrial Development Corporation (in short UPSIDC) but subsequently appointed on deputation, on 1.2.1995;contrary to the recruitment rules of respondent No. 2 and thereafter vide order dated 3.12.1998 the respondent No. 4 got absorption with the respondent No. 2 as Junior Engineer (Civil) against a reserved vacancy. The petitioner was promoted to the post of Assistant Project Engineer (Civil) on 27.9.2002 and the name of the petitioner has been shown at serial No. 19 and the name of respondent No. 4 shown at serial No. 20 in the seniority list published on 16.3.2006 by respondent No. 2. The aforesaid seniority list dated 16.3.2006 was challenged by Sri Mohd. Israt Assistant Project Engineer (Civil) and Sri Samakant Srivastava through writ petition No. 16353/06 and the other co officers namely Shri R.K. Goyal by filing another writ petition No. 16342/2006. Vide judgment and order dated 31.3.2006 the aforesaid writ petitions were allowed whereby the respondents were directed to prepare a fresh seniority list. In compliance of which the respondent No. 2 prepared a final seniority list after inviting objections on 2.6.2006 wherein the name of petitioner has been shown at serial No. 21 instead of serial No. 19.The petitioner had challenged the order dated 31.3.2006 passed by Hon'ble Court in Civil Misc. Writ Petition No. 16353 of 2006 by filing Special Leave Appeal (Civil) No. 9849/2006 before Hon'ble Apex Court. The Hon'ble Apex Court vide judgment and order dated 7.7.2006 has dismissed the Special Leave to Appeal (Civil) with the liberty to the petitioners to challenge the revised seniority list as well as consequential promotion. In consequences of the order passed by Hon'ble Supreme Court the petitioner submitted a joint representation to the respondent No. 2 on 28.8.2006 but his representation was not decided by respondent No. 2, hence this writ petition.
8. It is also stated in the writ petition that petitioner is scheduled caste category candidate and claiming proper seniority among the scheduled caste candidates and the respondents No. 3, 4 and 5 also belong to, reserved category. It is stated that the aforesaid writ petitions filed by Mohd. Israt, Sri Samakant Srivastava and Shri R.K. Goyal, Assistant Project Engineer (Civil) were not against the petitioners placement in the seniority list as they were officers of general category but the respondent No. 2 while preparing impugned seniority list dated 2.6.2006 has also disturbed the seniority of petitioner by showing the name of petitioner at serial No. 21 instead of serial No. 19. Similarly the respondents No. 3 and 5 were inducted in the respondent No. 2 organization as Junior Engineer (Civil) on 8.12.1989 and 8.6.1990 respectively against the reserved vacancy in direct recruitment. The respondent No. 4 was initially appointed as Junior Engineer in UPSIDC and on deputation he was appointed as Junior Engineer (Civil) in respondent No. 2 organization on 1.2.1995 contrary to the recruitment rules and other provisions of law. Thereafter the respondent No. 4 was illegally contrary to the rules and regulations absorbed with the respondent No. 2 as Junior Engineer (Civil) vide order dated 3.12.1998 against the reserve vacancy in the cadre of petitioner. A copy of the order dated 3.12.1098 is on record as Annexure-7 of the writ petition. It is further stated that the appointment of respondent No. 4 was protested by the petitioner beside other officers and a claim petition No. 313 of 2002 Ganga Dayal v. Chief Executive Officer Noida is also pending before U.P. Public Service Tribunal, Lucknow. It is also stated that respondents are going to promote the Assistant Project Engineer (Civil) to the post of Project Engineer (Civil) to fill the vacant posts on the basis of impugned seniority list dated 2.6.2006 for winch the departmental promotion committee is likely to meet in the month of March, 2007. The result would be that the petitioner would not be considered for promotion on account of the wrong placement of his name in the impugned seniority list. It is further stated that Sri Kalu Ram Verma respondent No. 4 whose name placed at serial no, 19 in the impugned seniority list, as a matter of fact he is not entitled for promotion to the post of Project Engineer (Civil) as his appointment with the respondent No. 2 organization is under challenge as the recruitment and promotion of respondent No. 4 in the petitioner cadre, is contrary to the rules. In this petition also the respondent No. 2 and other contesting respondents have filed their respective counter affidavit and petitioner has filed his rejoinder affidavit. By their counter affidavit the contesting respondents have disputed the assertions made in the writ petition and have tried to justify the impugned action taken by respondent No. 2.
9. We have heard Sri N.P. Singh and Sri Kaushal Kumar Singh, learned Counsels for the petitioners in writ petition of Sri Pradeep Kumar Garg and others and Sri Rajeshwar Singh for the petitioner in writ petition of Sri Babu Ram and Sri U.S. Awasthi, Sri Anurag Khanna for respondent No. 2 and Sri T.P. Singh, learned Senior Counsel, assisted by Sri Anil Kumar Srivaslava on behalf of private contesting respondent in both the writ petitions as well as Standing Counsel for respondent No. 1.
10. The submissions of learned Counsel for the petitioners in both the writ petitions in nut shell are that the absorption of private contesting respondents, who are deputationist in the services of the Authority are contrary to the Rules of absorption and Service Regulations 1981 inasmuch as the services rendered by deputationist in their parent department have wrongly been counted for determination of their seniority in the services of the Authority contrary to the provisions of Regulation 24 of Service Regulation 1981 which is relevant regulation for the purpose of determination of seniority as such the impugned seniority list dated 2.6.2006 drawn by respondent No. 2 and impugned order dated 31.3.2007 reiterating the aforesaid seniority list dated 2.6.2006 while rejecting the representation of petitioners are not sustainable in the eye of law and liable to be quashed. While elaborating his submission learned Counsel for the petitioners has submitted that from the perusal of application moved by private contesting respondents (deputationists) for their absorption in the services of the Authority and orders passed thereon by the competent Authority, there is nothing to indicate that the past services rendered by contesting private respondents in their parent departments has any way protected by the Authority while passing the order of their absorption., as such at the most in view of Regulation 24(2) of the Regulation 1981, the services of contesting private respondents (deputationists) could be counted from the date of their absorption in the Authority and not earlier to it but contrary to the aforesaid statutory Rules and order of absorption the Authority has counted their past services rendered by them in their parent departments prior to their absorption in the services of the Authority and has drawn the impugned seniority list dated 2.6.2006 contrary to the rules and aforesaid order of competent Authority, Us such seniority list drawn by the respondent No. 2 cannot be sustained.
11. Contrary to it, learned Counsel appearing for respondent No. 2 and private contesting respondents (deputationists) have urged that it is not in dispute that deputationists were already working in substantive capacity in the different Government Department/Corporation and undertaking prior to their joining with the services of die Authority on deputation. After serving a requisite time they have applied for their absorption in the services of Authority and order has been passed by competent Authority permitting them to be absorbed in the services of the Authority in equal rank to which they were working in their parent departments in .'accordance with law. It is no doubt true that while passing the order of absorption of the deputationists in the services of the Authority no specific order regarding their past services has been passed but since under the Rules of recruitment the deputation is one of the source of recruitment in the services of the Authority under Service Regulation 1981 and there is nothing to indicate in the order of their respective absorption, that their past services rendered in their parent department shall not be counted for the purposes of determination of their seniority inasmuch as in absence of any contrary provisions shown under any rules governing such absorption, it would be presumed that on permanent absorption of services of deputationist, the services rendered by them in substantive capacity in their respective parent organizations before joining the post on deputation with the Authority shall be counted and computed towards the length of service for determination of seniority on the post in the services of the Authority. While placing reliance upon Regulation 24(2) of Service Regulation 1981, learned Senior Counsel Sri T.P. Singh has submitted that the aforesaid Regulation does not any manner excludes the past services of deputationists who have been absorbed in the services of the Authority, thus as natural consequence of absorption of their services in the Authority, the services rendered by them in their parent organization in the equal rank or grade shall be computed and counted towards the length of their service for the purpose of determination of seniority as the deputation is nothing but it is merely a transfer of service from one department/organization to another department/organization and on such transfer the transferee would not lose his past services accrued on his credit in his parent department/organization.
12. We have given our anxious considerations to the submissions of learned Counsel appearing for the parties and also have gone through the records but before we deal with it, it would be useful to refer some of relevant statutory provisions having material bearing with the issues involved in the case. In exercise of power under Section 19 of the Act 1976 a statutory regulation namely the New Okhla Industrial Development Authority Service Regulations 1981 has been trained. To better understand the ambit and scope of the provisions of Regulation it would be useful to extract the relevant provisions of Service Regulation 1981 as under:
THE NEW OKHLA INDUSTRIAL DEVELOPMENT Authority SERVICE REGULATIONS 1981 In exercise of the powers under Section 19 of the U.P. Industrial Area Development Act, 1976 (U.P. Act No. 6 of 1976) the New Okhla Industrial Development Authority, with the previous approval of the Government of Uttar Pradesh hereby makes the following regulations to provide for the conditions of service of employees or the said Authority and for matters incidental thereto.
CHAPTER -1 PRELIMINARY
1. (1) These regulations may be called the new Okhla industrial Development Authority Service regulations, 1981.
(2) They shall come into force on January 14, 1981.
2. These regulations shall apply to every whole time employee of the Authority except a person working with the Authority on deputation from the Union Government or any State Government or a Local Authority or a Corporation or any other organization by whatever name called, and such a persons shall continue to be governed by the rules applicable to him in relation to his service under his parent department or organization, by whatever name called unless such person is absorbed in the service of the Authority as a regular employee.
3. In these regulations, unless the context otherwise require:
(a) 'Act' means the U.P. Industrial Area Development Act, 1976;
(b) 'Appointing Officer' means an officer who for the time being has the power to make appointment to any post wider the Authority;
(c) 'Authority' means the New Okhla Industrial Development Authority constituted under Section 3 of the Act.
(d) 'Chief Executive Officer' means the Chief Executive Officer of t lie Authority;
(g) 'Employee; means an employee of the Authority to whom these regulations apply;
(I) 'Regular employee' means an employee whose employment by terms of his employment is terminable by three month's notice as provided in regulation 22 or who has been absorbed in a permanent capacity against any post under the Authority without limit of Tune;
(m) 'Service' means service in the Authority;
(o) 'State Government' means the Government of Uttar Pradesh;
4. Where the Authority is satisfied that the operation of any regulation causes any undue hardship in any particular case, it may, dispense with or relax the requirements of that regulation to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner consistent or commensurate with the interest of the Authority.
5. (1) The power to interpret these regulations vests in the Chief Executive Officer who may issue such administrative instructions as he may consider necessary to give effect and carry out the purpose of these regulations.
(2) If any employee feels aggrieved by the interpretation or implementation of any of these regulations he shall have a right to appeal to the Authority whose decision thereon shall be final and conclusive.
CHAPTER-II GENERAL CONDITIONS OF RECRUITMENT
6. (1) The classification of posts under the Authority for the purposes of these regulations shall broadly be as in Annexure 'A'.
(2) 'The Authority may change the classification in respect of any posts.
(3) The Authority shall from time to time fix the number of posts in all groups of posts and also their pay scales.
13. Reservation for candidates belonging to Scheduled Castes Scheduled Tribes or Backward Classes, in respect of posts under the Authority shall be in accordance with such orders of the State Government for their reservation as may, from time to time, be issued or made applicable through the issue of guidelines, or directions.
CHAPTER-III RECRUITMENT AND APPOINTMENT
14. The Authority may create such posts with such designations And carrying such pay so it may consider necessary for the performance of it's functions under the Act,
15. The Authority shall specify the Appointing Officers for different posts or categories or classes of posts under it and until so specified the Chief Executive Officer shall be the Appointing Office in relation to all posts under the Authority.
16. (1) Recruitment to any post under the Authority may be made from any of the sources:
(a) by direct recruitment;
(b) by promotion from amongst the employees occupying post carrying a lower scale through a departmental test or an interview of selection or in any other manner specified by the Authority.
(c) by deputation or re-employment or on contractual basis
(d) from any other source as approved by the Authority.
(2)(i) Sixty six percent of Group 'A' posts shall be filled in by direct recruitment and the remaining thirty four percent posts shall be filled in by promotion from amongst the employees upon the basis of seniority subject to the rejection of the unfit and fulfillment of the requisite qualifications and also subject to the condition of the particular employee having worked for at least a period of two years on ii post carrying scale of pay next below. If at any time it is found that sufficient number of employees are not available for filling in the percentage prescribed for promotion such posts may be filled in by direct recruitments;
(ii) Various posts falling under Group 'B' will be filled in such a way as to ensure that fifty percent of the posts are filled in the promotion from amongst the employees and such promotion shall be made on the basis of seniority subject to the rejection of the unfit and fulfillment of the requisite qualifications and also subject to the condition of the particular employee having worked on a carrying the scale of pay next below for a period of at least two years;
(iii) Posts under Group 'C' carrying lowest scale of pay shall be filled in to the extent of twenty five percent by promotion from amongst the employees belonging to the Group 'D' on the basis of seniority subject to the rejection of the unfit and fuflfillment of the requisite qualifications and also subject to the condition of the particular employee having worked on a post carrying a scale of pay next below for at least a period of two years. The remaining seventy five percent of such posts shall be filled in by direct recruitment;
(iv) Notwithstanding any thing hereinbefore contained the Authority shall have full power to modify the source of recruitment or the percentage of promotion or direct recruitment in relation to any posts or class of posts.
Explanation:- Any post the maximum of the scale of which is less than the maximum of the scale of any other post shall be deemed to be post carrying a lower scale of pay.
17. Subject to the provisions of regulation 13 or regulation 16 the Chief Executive Office r may, from time to time, decide the mode of selection for filling the various posts in the Authority. For every selection there shall be constituted a selection committee by the Appointing Officer which will consist of not less than three persons and such selection committee shall draw up a panel of names of candidates for selection arranged in order of preference and furnish it to the Appointing Officer together with its recommendations in the order of merit any panel prepared in this manner will remain alive for one year from the date of its finalization and, in the case of vacancy during the said period of one year, the Appointing Officer may, without calling for fresh applications, appoint the candidates in the order in which their names are arranged on the panel.
19. (1) Any employee whether appointed directly for the first time against a regular post or promoted to a regular post under the Authority shall be placed on probation for a period of one year from the date of joining the now post; provided that the Authority may in exceptional cases, such as the appointment of exports and like, waive the requirement of probation.
(2) The performance of the employee in the new post will be watched during the period of probation and the Appointing Officer may extend the period of probation for a further period not exceeding one year without assigning any reasons thereafter.
20. (1) Any employee directly recruited to a post may at any time, during or at the end of the period of probation or, as the case may be, during the extended period of probation, be discharged from the service of the Authority under the orders of the Appointing Officer without assigning any reasons of giving the notice or pay in lieu thereof (2) Any employee promoted to a higher post on probation may be reverted by the Chief Executive Officer to his original post any time during or at the end of probation, as the case may be, without assigning any reason therefor.
21. A probationer may be given a regular appointment by an order in writing, at the end of the period of probation or the extended period of probation, as the case may be, if his work and conduct are reported to be satisfactory, has integrity is certified, and the Appointing Officer considers him to be otherwise fit for appointment.
24. (1) A category wise gradation list of all the regular employees of the Authority shall be maintained for determining the inter-se seniority of employees within the category. The Chief Executive Officer may order that the gradation list for any particular category shall be prepared for the Authority as a whose or separately for each of its units.
(2) Where the seniority of an employee has not be specifically fixed by an order of the Appointing Officer, it will ordinarily be fixed on the basis of the date of his initial regular appointment in the category. Wherever more than one person have been appointed in the same category on the same date their inter-se seniority shall be determined by the Appointing Officer having regard to the age of the concerned employee.
(3) Where appointment has been made as a result of promotion and no merit list has been prepared, the inter-se seniority of the employee in the next grade in one selection shall be fixed in accordance with their seniority in the lower grade from which the promotion is made.
(4) Where any appointments in the same category and in the same grade are made on the same date by promotion and by direct recruitment an employee appointed by promotion shall be deemed to be senior to the employee recruited directly, CHAPTER-VII MISCELLANEOUS
79. The provision of U.P. Government Service Conduct Rules, 1956 as amended from time to time, shall mutates mutandis apply to the employees.
80. Far the removal of doubt it is hereby declared that these regulations shall be subject to any rules made by the State Government under the Act or any directions issued by the State Government under Section 41 of the U.P. Urban Planning and Development Act, 1973 or to the provisions of any other law made on the subject by an Act of the Legislature of Uttar Pradesh or the Parliament.
81. The Authority may with the previous approval of the State Government add, amend, very or rescind these regulations to such extent as it may consider expedient.
13. There is another set of rules, framed under the proviso to Article 309 of Constitution of India namely the Uttar Pradesh Absorption of Government Servants in Public Undertaking Rules 1984 hereinafter referred to as Absorption Rules 1984. For better appreciation of controversy the relevant provisions of the Absorption Rules 1984 are extracted as under:
NOTIFICATION Miscellaneous No.G-4-1660/X-84-925/60/T.C. II. dated December 1, 1984:
In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of all other rules in this regard, the Governor is pleased to make 1 he following rules to regulate the conditions of absorption of Government Servants, employed in connection with the affairs of the State of Uttar Pradesh, in Public Undertakings.
THE UTTAR PRADESH ABSORPTION OF GOVERNMENT SERVANTS IN PUBLIC UNDERTAKINGS RULES, 1984
1. Short title.- (I) These rules may be called the Uttar Pradesh absorption of Government Servants in Public Undertakings Rules, 1984. (2) They shall come into force at once.
2. Definitions.' In these rules unless there is anything repugnant in the subject or context:
(a) "absorbed person" means a Government Servant whose absorption in the service of an undertaking has been accepted by the Government under Rule 5.
(b) "Deputation" means the lending by the Government of the service of a Government Servant, on fore gin Service to an undertaking;
(c) "Government" means the Government of Uttar Pradesh;
(d) "Government Servant" means a person appointed to a Public Service or a post in connection with the affairs of the State of Uttar Pradesh in permanent capacity in a pensionable establishment;
(e) "Governor" means the Governor of Uttar Pradesh'
(f) "Scientific Employee" means a Government Servant possessing scientific qualifications appointed on such post as in the opinion of the Governor involves duties and functions of a scientific nature;
(g) " Undertaking " means-
(i) a statutory body incorporated by or under any Uttar Pradesh Act or Central Act.
(ii) a Government company within the meaning of Section 617 of the Companies Act, 1956.
(iii) a Local Authority within the meaning of Clause (25) of Section 4 of the Uttar Pradesh General Clauses Act, 1904.
(iv) a scientific organization registered under the Societies Registration Act, 1860, wholly or partly under the Control of the Central Government or any Slate Government.
3. Age limit of deputation- No Government servant shall be permitted to go on deputation after he attains the age of 50 years.
4. Time Limit for deputation- No Government Servant shall ordinarily be permitted to remain on deputation jar a period exceeding Jive year*.
5. Absorption in Undertaking- (1) A Government servant may be permitted to be absorbed in the service of the undertaking in which he is on deputation, if
(i) he applies to the Government for his absorption in the undertaking before the expiry of three years front the date of commencement of his deputation or before the date on which lie attains the age of 53 years, whichever be earlier, and the undertaking concerned also moves the Government for his absorption within such period, and
(ii) the Government agrees to such absorption in public interest:
Provided that a Government Servant who is on deputation in an undertaking on the date of commencement of these rules may apply and the undertaking may move for his absorption within six months of such commencement or within the period specified in Clause (i) whichever expires later. (2) The Government shall not agree to absorption:
(a) of a Government Servant belonging to Group 'D' in any post in the undertaking;
(b) of a Government servant who holds a ministerial post under the Government, in a ministerial post in the Undertaking;
(c) unless the Government servant is to be absorbed in an equivalent post in the undertaking or to such higher post in the undertaking as he has held on deputation for at least three years;
(d) Unless his pay in the pay scale of the post on which he is to be absorbed is fixed at the stage arrived at by adding the deputation allowance to the pay admissible to him in the pay scale of his post in the parent department, treating it as his basic pay;
Provided that -
(i) if there is one such stage in the pay scale of the undertaking, his pay isfixedat the stage next below and the difference is granted as personal pay, liable to be absorbed in future increments;
(ii) if the aggregate of the pay admissible in the pay scale of parent department and the deputation allowance falls short of the minimum in the pay scale of the undertaking his pay is fixed at such minimum and if such aggregate exceeds the minimum of the pay scale of the undertaking, his pay is fixed as such maximum and the difference is granted as personal pay.
3. Such absorption shall not be accepted with effect from any date prior to the date on which the undertaking first expresses its agreement to absorb the Government Servant in its service.
6. Effect of absorption.- A Government servant whose absorption in an undertaking is accepted by the Government shall, not withstanding anything contained in Rule 56 of the. Uttar Pradesh Fundamental Rules, be deemed to have retired from Government Service with effect from the dale of his absorption and his lien in his parent department shall stand terminated from that date.
14. Before averting to the submissions of learned Counsels for the parties it is to be pointed out that respondents No. 3 and 4 of the writ petition No. 8756 of 2007 namely Mohd. Irshad and Samarkant Srivastava have filed a writ petition before this Court bearing No. 16353 of 2006 Mohd. Ishrat and Anr. v. State of U.P. and Ors. impleading the petitioners of these cases in the array of respondents whereby the seniority list of Assistant Project Engineers dated 16.3.2006 has been challenged and another similar writ petition was also filed by Sri K.K. Goel bearing No. 16342 of 2006 R.K. Goel v. State of U.P. and Ors. for the same relief. Both the writ petitions were decided by this Court vide a common judgment and order dated 31.3.2006. While deciding the aforesaid writ petitions this Court has quashed the seniority list dated 10.3.2006 published by respondent No. 2 and directed the respondent No. 2 to prepare a fresh seniority list. While doing so this Court has directed the respondent No. 2 to consider the question whether the services of the petitioners of aforesaid writ petitions in their parent department be considered to determine the seniority and the aforesaid question was to be decided in the light of representations offered by the petitioners and other persons from time to time by adhering to the law of present date, irrespective of fact that all such persons have filed writ petition before this Court or not.
15. Feeling aggrieved against the judgment and order dated 31.3.2006 passed by this Court in aforesaid writ petitions it appears that the petitioners of these writ petitions have preferred special leave petition bearing No. 9849 of 2006. Vide judgment and order dated 7th July 2006 the Hon'ble Apex Court has been pleased to dismiss the aforesaid special leave petition by making certain observations therein as under:
ORDER We are told that pursuant to the judgment passed by the High Court, a revised seniority list has been drawn and the petitioners herein are affected by the seniority list, Without prejudice to the rights of the petitioners, the special leave petition is dismissed. The petitioners would be at liberty to challenge the revised seniority as well as consequential promotion. In case of such challenge, the Court may decide the issues in uninfluenced by some of the observations made by the Division Bench and the authorities shall also consider the representations of the petitioners.
16. From bare reading of observations made by the Hon'ble Apex Court it is clear that prior to the aforesaid special leave petition came to be heard by the Hon'ble Apex Court the seniority list in pursuance of direction given by this Court on 31.3.2006 has been revised on 2.6.2006 which has affected the appellants before the Apex Court, accordingly, while dismissing the special leave petition the Hon'ble Apex Court has given liberty to the petitioners to challenge the revised seniority list as well as consequential promotions. It was further observed that, in, case of such challenge the Court may decide the issues uninfluenced by some of the observations made by the Division Bench of High Court and authorities shall also consider the representation of the petitioners. It appears that in compliance of the aforesaid observation made by Hon'ble Apex Court the petitioners' representation has been decided by the Chief Executive Officer of the respondent No. 2 on 31.3.2007 whereby the representations of the petitioners of these writ petitions have been rejected and the revised seniority list dated 2.6.2006 earlier drawn by respondent No. 2 has been reaffirmed. Therefore, in view of this legal position now it is open for this Court to decide the issues involved in these petitions on merits, without being influenced by any observation made in the judgment and order dated 31.3.2006 passed by this Court, in aforesaid writ petitions as the aforesaid judgment of this Court has been virtually put aside by the Hon'ble Apex Court.
17. Now the question that arises for consideration is whether the absorption of services of deputationists-respondents in the above noted writ petitions is valid and in accordance with the provisions of law or not? In this connection it is necessary to point out that it is not in dispute that respondents No. 3 and 4 of writ petition No. 8756/2007 have made an application before respondent No. 2 for seeking their absorption with the respondent No. 2 against the posts lying vacant in the category of direct recruitment. In response to application dated 17.9.1994 of respondent No. 3, the respondent No. 2 on 30.3.1998 has passed the order of absorption of the services of respondent No. 3. The copy of the application dated 17.9.1994 is on record as Annexure-8 of the writ petition. The order of absorption in respect of respondent No. 3 dated 30.3.1998 appears to have been cancelled vide subsequent order dated 6.4.1998. However, the aforesaid order dated 6.4.1998 has been challenged by respondent No. 3 in writ petition No. 1450 of 1998 before this Court and vide order dated 18.12.2003 passed by this Court, the order dated 6.4.1998 canceling his absorption was quashed, as a result of which the order dated 30.3.1998 was restored vide order dated 31.3.2004. A copy of the order dated 30.3.1998 issued by Principal Secretary, Industrial Development and order dated 31.3.2004 collectively has been filed as Annexure SCA-1 in counter affidavit filed by Mohd. Ishrat in writ petition No. 8756 of 2007. However, while passing the order of absorption no condition was laid down by respondent No. 2 that the past services of respondent No. 3 will not be counted for the purpose of seniority. Similarly, Samakant Srivastava respondent No. 4 of the aforesaid petition had moved an application for his absorption on 06.02.2004 before respondent No. 2. However, vide order dated 27.8.2004 passed by Adhyaksha and Mukhya Karyapalak Adhikari Noida he was absorbed subject to final decision of Writ Petition No. 478 SB of 2004. The aforesaid application and order dated 27.8.2004 and letter dated 19.2.2004 collectively filed along with supplementary counter affidavit of Mohd Ishrat are on record as Annexure SCA-2 to the affidavit filed in the writ petition No. 8756of2007.
18. Similarly, in writ petition No. 9909 of 2007 Babu Ram and Ors. v. State of U.P. and Ors. it is stated that the respondent No. 4 of the said writ petition namely Kalu Ram Verma was initially appointed as Junior Engineer in U.P.S.I.D.C and he was appointed as Junior Engineer (Civil) on deputation in the Authority on 1.2.1995. Thereafter he was absorbed in the Authority as Junior Engineer (Civil) vide order dated 3.12.1998 against the reserved vacancy. It is timber stated in the writ petition that the appointment of respondent No. 4 was protested by the petitioner and other officers and respondent No. 3 namely Sri Ganga Dayal has challenged the appointment and absorption of respondent No. 4 before U.P. State Public Services Tribunal, Lucknow by filing claim petition No. 313 of 2002 titled as Ganga Dayal v. Chief Executive Officer, Noida and Ors. which is still pending for adjudication before the tribunal itself. Although in this petition the petitioner did not challenge the appointment and absorption of respondent No. 4 with the Authority directly as the same is still under challenge before U.P. Public Services Tribunal. However, the petitioner being aggrieved against seniority list dated 2.6.2006 and promotion on the post of Project Engineer (Civil) sought to be made on the basis of impugned seniority list has filed the aforesaid writ petition.
19. Thus, from the aforesiated facts one thing is clear that the appointment and absorption of respondents No. 3 and 4 of writ petition No. 8756/07 Pradeep Kumar Garg and Ors. v. State of U.P. and Ors. have in fact not been directly under challenge before this Court rather the validity of then- appointment and absorption in the services of the Authority is under challenge in the aforesaid writ petition only for collateral purpose of determination of seniority, though the appointment and absorption of respondent No. 4 is still under challenge before Lucknow Bench of this Court in Writ Petition No. 47S S.B. 2004 and similarly, in connected writ petition No. 9909/07 Babu Ram v. State of U.P. and Ors. though the validity of appointment and absorption of respondent No. 4 namely Sri Kalu Ram Verma is not directly under challenge before this Court and the same is still under challenge before the U.P. Public Services Tribunal in claim petition No. 313/2002 titled as Ganga Dayal v. Chief Executive Officer, Noida which is still pending for adjudication, but the validity of his appointment and absorption in the service of the Authority is under challenge herein above noted writ petition only for co-lateral purpose of determination of his seniority vis-a-vis the petitioner of said writ petition No. 9909/07. Mow ever, in spite of pendency of aforesaid litigations, learned Counsel for the parties have made their respective submissions touching the merit of aforesaid question inasmuch as the question of determination of seniority of the petitioners vis-a-vis deputationists-respondents which is solely dependent upon the validity of appointment on deputation and absorption of deputationists-respondents in the services of the Authority and in given facts and circumstances of the case, same is consequential in nature, therefore, it is to be seen as to whether the appointment on deputation with the services of the Authority and absorption of aforesaid deputationists-respondents in both the writ petitions in the services of the Authority is valid or not?
20. In this connection learned Counsel for the petitioners has drawn our attention on the provisions of the Absorption Rules 1984. Rule 2 of which defines various expressions used in the Absorption Rules 1984. The definition clause stipulates that in these rules unless there is anything repugnant in the subject or context (a) the 'absorbed person' means 'a Government servant whose absorption in the service of undertaking has been accepted by the Government under Rule 5', Clause (b) of which defines the expression 'deputation' means the lending by Government of the service of a Government servant on foreign service to undertaking, Clause (c) defines 'Government' means Government of Uttar Pradesh, Clause (d) defines 'Government Servant' means a person appointed in a public service or post in connection with the affairs of Stale of Uttar Pradesh in permanent capacity in a pensionable establishment. Rule 3 of said rules deals with the age limit for deputation under which no Government servant shall be permitted to go on deputation after he attains the age of 50 year, Rule 4 deals with the time limit for deputation which provides that no Government servant shall ordinarily be permitted to remain on deputation for a period exceeding five years. Rule 5 provides provisions for absorption in undertaking which stipulates that the Government servant may be permitted to be absorbed in the services of undertaking in which lie is on deputation if he applies to the Government for his absorption in the undertaking before expiry of three years from the date of commencement of his deputation or before the date on which he attains the age of 53 years whichever be earlier and the undertaking concerned also moves the Government for his absorption within such period and the Government agrees to such absorption in public interest. A proviso has been added to Sub-rule 1 of Rule 5 to the effect that a Government Servant who is on deputation in an undertaking on the date of commencement of these rules may apply and the undertaking may move for his absorption within six months of such commencement or within the period specified in clause I whichever expires later. Sub-rule 2 of Rule 5 deals with the cases in which Government shall not agree to absorption. Rule 6 of the Absorption Rules 1984 deals with the provisions pertaining to the effect of absorption wherein a Government servant whose absorption in an undertaking is accepted by the Government shall notwithstanding anything contained in Rule 56 of U.P. Fundamental Rules be deemed to have retired from Government service with effect from the date of his absorption and his lien in his parent department shall stand terminated from that date. In view of the aforesaid provisions learned Counsel for the petitioners has urged that although the Authority is an undertaking within the meaning of Rule 2(g) of the Absorption Rules 1984 as it is a statutory body incorporated by or under the Act 1976 which is an U.P. Act, but the contesting private respondents-deputationists are not Government servants within the meaning of Rule 2(d) of the Absorption Rules 1984 which defines Government servant means a person appointed to a public service or post in connection with the affairs of State of Uttar Pradesh in permanent capacity in a pensionable establishment.
21. While substantiating his submission learned Counsel for the petitioners has urged that Mohd. Ishrat respondent No. 3 of the Writ Petition No. 8756 of 2007 was initially employee of Rural Engineering Services, department of Uttar Pradesh and which was not purely Government department and Samakant Srivastava, respondent No. 4 was employee of U.P. State Power Corporation Limited which was public Corporation but not a Government department, as such respondents No. 3 and 4 of aforesaid writ petition and respondent No. 4 of Writ Petition No. 9909 of 2007 namely Sri Kalu Ram Verma who was employee of U.P.S.I.D.C, which was not a Government department, could not be absorbed in the services of the Authority under the aforesaid Absorption Rules 1984. It is no doubt true that the erst-while U.P. State Power Corporation and U.P. State Industrial Development Corporation are not departments of Government, therefore, Absorption Rule 1984 is not applicable in respect of absorption of Sri Samakant Srivastava respondent No. 4 of writ petition No. 8756 of 2007 and Kalu Ram Verma respondent No. 4 of Writ Petition No. 9909 of 2007, but so far as Mohd. Ishrat respondent No. 3 of Writ Petition No. 8756 of 2007 is concerned, he was Assistant Project Engineer in Rural Engineering Services Department, Uttar Pradesh, which was. in our opinion, a purely Government Department of the State of U.P. and nothing contrary has been shown to us, therefore, we have no hesitation to hold that he was a Government servant and his absorption in the services o! the Authority on the post of Assistant Project Engineer had been accepted by the Government of Uttar Pradesh vide letter dated 28th March 1998 as contained in Annexure SCA-1 filed by Mohd. Ishrat in Writ Petition No. 8756 of 2007, thus no fault can be found in absorption of services of Mohd. Ishrat in the services of the Authority under the Absorption Rules 1984. Besides this, absorption order dated 30.3.1998 of respondent No. 3 was cancelled vide order dated 6.4.1998, which was challenged by him in a writ petition before this Court and his aforesaid writ petition was allowed and order dated 6.4.1998 has been quashed, thereafter his absorption order dated 30.3.1998 has been restored and same has attained finality. Therefore, in our opinion, the absorption of Mohd. Ishrat cannot be challenged on that score.
22. So far as the absorption of respondent No. 4 of both the writ petitions namely Sri Samakant Srivastava and Kalu Ram Verma are concerned, we are in agreement with the submissions of learned Counsel for the petitioners that Absorption Rules 1984 is not applicable to them, as in .our opinion, they were not Government servant due to the reason that they were employees of different Corporations before their joining on deputation in the services of the Authority, but during the course of argument learned Counsel appearing for the private contesting respondents i.e. deputationists Sri T.P. Singh has placed another set of Rules namely Uttar Pradesh of Rajya Vidyut Parishad Ke Sewakp Ka Sashan Evam Anya Upkramon Me Samviliyan Viniyam 1987 which is a Statutory Regulation and has been framed under the provisions of Section 79(c) of Electricity Supply Act, 1948 under which the employees of the Corporation can be absorbed in the services of State Government or in other undertakings of the Government in the same manner as employees of the Government can be absorbed in the undertakings of the Government who are on deputation in such undertakings as under Absorption Rules 1984 and vide order dated 18/19.3.2004 the U.P. State Power Corporation Ltd. has given acceptance to the Authority for absorption of services of Sri Samakant Srivastava Assistant Engineer on the post in question. The copy of aforesaid letter dated 19"' March 2004 and Regulation 1987 are not on record. Besides this, there is another Government order dated 13.6.1977 wherein the provision has been made for taking the services of employee on deputation by one undertaking from another undertaking is also not on record. The Regulation 1987, Government order dated 13.6.1977 and letter dated 19lh March 2004 are hereby made part of record.
23. For better appreciation of the scope of provisions contained under the aforesaid Regulations 1987, the relevant provisions of the same are extracted as under:
24. Similarly, the Government Order dated 13.6.1977 dealing with the question of deputation from one corporation or undertaking to another corporation or undertaking is extracted as under:
25. The letter dated 18/19'" March 2004 is extracted as under:
26. At the strength of these regulations 1987 and Government order dated 13.7.1977, learned Senior Counsel Sri T.P. Singh has submitted that the services of Sri Samakant Srivastava respondent No. 4 in writ petition No. 8756 of 2007 and Sri Kalu Ram Verma respondent No. 4 of writ petition No. 9909 of 2007 could be validly taken on deputation by the Authority and their absorptions were also in accordance with the aforesaid provisions of law. Contrary thereto learned Counsel for the petitioners has further submitted that it is no doubt true that Regulation 1987 permits appointment on deputation and absorption of employees of erst-while U.P. State Power Corporation in the Government Department and other undertakings but the same has no concern with the appointment and absorption of such employees in the services of the Authority unless there is specific provision either under the provisions of the Act 1976 or under the provisions of Service Regulations 1981 framed there under, authorising absorption of services of such deputationist in the services of the Authority. According to the learned Counsel for the petitioners there is no such provision either under the aforesaid Act 1976 or Service Regulation 1981 framed thereunder which empowers the Authority to absorb the services of contesting private respondents-deputationists in the services of the Authority. Therefore, the absorption of respondent No. 4 of both the writ- petitions are not permissible under law.
27. White contradicting the aforesaid arguments of, leaped counsel for the petitioners, Sri T.P. Singh learned Senior Counsel appearing for contesting private respondents in the above noted both the writ petitions has vehemently urged that the provisions of Section 5 of the Act 1976 has clearly empowered the Authority to appoint such number of officers and employees as may be necessary for performance of its functions which may determine their grades and designations subject to such control and restrictions as may be determined by general/special order of the State Government and besides the aforesaid provisions under the Act 1976, the Regulation 16 of Service Regulations, 19S1 also provides amongst the sources of recruitment as one of the source of recruitment by deputation. Thus, by necessary implication the power of absorption of employees who are taken on deputation within the services of the Authority is implicit in it, otherwise such power can not be effectuated by the Authority. Apart from it, Regulation 80 of Service Regulation, 1981 declares that these regulations shall be subject to any rule made by the State Government under the Act or any direction issued by the State Government under Section 41 of U.P. Urban Planning and Development Act 1973 or to the provisions of any other law made on the subject by an Act of Legislature of Uttar Pradesh or the Parliament. At the strength of aforesaid provisions of "Service Regulation 1981 Sri T.P. Singh, learned Senior Counsel appearing for the contesting private respondents-deputationists has vehemently urged that the Uttar Pradesh Rajya Vidyut Parishad Ke Sewako KaSashan Evam Anya Upkramon Me Samviliyan Viniyam- 1987 has been framed under Section 79(c) of Electricity Supply Act, 1948 which is an enactment of Parliament and Regulations framed thereunder on the subject in issue shall apply even if no specific provision on the subject is made under Service Regulations 1981. It is for the simple reason that Service Regulations of year 1981 are subject to Rules made by the State Government under the Act and subservient to such rules framed under U.P. Act or Central Act. In any view of the matter, direction of State Government contained in the Government order dated 13.6.1977 is also binding upon the Authority (Respondent No. 2), which is also referable to the provisions of Section 2 of the Uttar Pradesh State Control Over Public Corporation Act, 1975, and authorises one undertaking to take services of employees of another undertaking which is naturally on deputation, therefore, the absorption of contesting private respondents-deputationists cannot be found faulty, therefore, could be validly made under the provisions of aforesaid Government order.
28. To examine the aforesaid submission of the learned Counsel for the deputationists-respondents the provisions of Section 5 of the Act 1976 are extracted as under:
Staff of the Authority.- (1) Subject to such control and restrictions as may be determined by general or special orders of the Stale Government, the Authority may appoint such number of officers and employees as may be necessary for the performance of its functions, and may determine their grades and designations.
(2) Subject as aforesaid the officers and other employees of die Authority shall be entitled to receive from the funds of the Authority such, salaries and allowances and shall be governed by such other conditions of service as may be agreed upon with the Authority.
29. From the perusal of Section 5 of the Act 1976, it is clear that the power of appointment of officers and employees lies with the Authority subject to such control and restrictions as ma> be determined by general or special order of State Government. The learned Counsel for the petitioners could not point out any such general or special order under which the power of appointment which includes the power of appointment by way of deputation is restricted by any general or special order of State Government, rather contrary thereto Regulations 16(1)(c) of the Service Regulation 1981 gives express power to the Authority to make appointment by way of deputation as the deputation is one of the source recognised under the sources of recruitment. Once the deputation as a source of recruitment is conceded under rules, of recruitment, we do not find any difficulty in assuming the power of absorption of deputationist with the Authority by necessary intendment or implication, under the provisions the aforesaid Act and Service Regulations 1981 framed thereunder otherwise such power cannot be effectively exercised by the Authority.
30. Besides this Regulation 80 of Service Regulation, 1981 declares that these Regulations are subject to the provisions of any rule made by the Stale Government under the Act or direction issued by,: State Government under Section 41 of U.P. Urban Planning and Development Act 1973 or to the provisions of any other law made on the subject by an Act of Legislature of Uttar Pradesh or the Parliament. Since 1987 Regulations referred herein before has been framed under the provisions of Section 79(c) of Electricity Supply Act 1948 which is an enactment of Parliament and the aforesaid Regulations authorise the absorption of employees of Corporation in Government undertakings or statutory corporations and it cannot be disputed that the Authority is an undertaking of the Government of U.P. under Regulation 2(Chha) of Regulation 1987 referred hereinbefore, therefore, no fault can be found in absorption of services of Samakant Srivastava respondent No. 4 of the W.P. No. 8756 of 2007 in the services of the Authority who was earlier employee of the U.P. Stale Power Corporation. Apart from it, the Government order dated 13.0.1977 referred hereinbefore is also referable to Section 2 o\ the Uttar Pradesh Mate uontiui Over Public Corporation Act 1975 wherein employee of one undertaking can be taken on deputation by another undertaking of the Government.
31. For convenience we would extract the provisions of the Uttar Pradesh State Control Over Public Corporation Act 1975 along with aim and object of enactment as under:
THE UTTAR PRADESH STATE CONTROL OVER PUBLIC CORPORATION ACT, 1975 [U.P. Act No. 41 of 1975] (as passed by the Uttar Pradesh Legislature) An act to provide for the control of State Government over statutory bodies established under any Uttar Pradesh Act (excepting Universities governed by the Uttar Pradesh State Universities Act, 1973).
It is hereby enacted in the Twenty-sixth Year of the Republic of India as follows:
1 Short title and commencement.- (1) This Act may be called the Uttar Pradesh State Control Over Public Corporation Act, 1975.
(2) It shall come into force at once.
2. Power to issue directions to statutory bodies.- (1) Every statutory body (by whatever name called), established or constituted under any Uttar Pradesh Act, excepting Universities governed by the Uttar Pradesh State Universities Act, 1973, as re-enacted and amended by the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, shall, in the discharge of its functions, be guided by such directions on questions of policies, as may be given to it by the State Government, notwithstanding that no such power has expressly been conferred on the State Government under the law establishing or constituting such statutory body.
(2) if any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under Sub-section (1), the decision of the State Government shall be final.
32. From a bare reading of the provisions of Section 2 along with the aims and objects of the aforesaid Act 1975 it appears that the aforesaid Act was enacted to provide for the control of State Government over statutory bodies established under any Uttar Pradesh Act (excepting Universities governed by the Uttar Pradesh State Universities Act 1973) in discharge of its functions notwithstanding that no such power has expressly been conferred on the State Government under the law establishing or constituting such statutory body. It cannot be disputed that the Authority is a statutory body incorporated under the provisions of Section 3 of the Act 1976 which is an U.P. Act. In spite of fact that no such power has been conferred upon the State Government under the said Act 1976 the power conferred by Section 2 of the aforesaid Act 1975 can he exercised by the Government of Uttar Pradesh and direction can be issued on the question of policy and such statutory bodies in discharge of n- functions shall be guided by such directions given by the State Government. therefore, in our opinion, the direction contained in Government order dated 13th June l977 is treated to be guiding direction under Section 2 of me aforesaid Act, 1975 wherein' the functions of the statutory body like Noida .can be guided. Accordingly, the appointment on deputation and absorptions of Sri Samakant Srivastava and Sri Kalu Ram Verma respondent No. 4 of both the petitions with the services of the Authority are permissible under the said Government order dated 13.6.1977 and action of respondent No. 2 in absorbing the services of respondent No. 4 of both the petitions which Has been done after seeking permission from the parent department/organisation of both the aforesaid person cannot he found faulty on that score.
33. Besides aforestated legal position, Regulation 2 of Service Regulation 1981 which deals with the applicability of regulation stipulates in clearest term that these regulations shall apply to every whole, time employee of the Authority except a person working with the Authority on deputation from the Union Government or any State Government or a local Authority or a Corporation or any other organisation by whatever name called and such a person shall continue to be governed by the rules applicable to him m relation to his service under his parent department or organisation, by whatever name called unless such person is absorbed in the services of the Authority as a regular employee. It is no doubt true that until the absorption of aforesaid employees in the services of Authority is made, they shall continue to be governed by the rules applicable to them in relation to their service under their parent department of organization but the expression 'unless such person is absorbed in the services of the Authority' is significant and clearly indicate that such person can be absorbed in the services of the Authority as regular employee. Thus, in our opinion, the Regulation 2 of Service Regulation 1981 also pre-supposes the absorption of services of deputationist working with the Authority in the Services of the Authority. In view of foregoing discussion there appears no scope for doubt to hold that the scheme of the Act 1976 coupled with die provisions contained in Service Regulation 1981 expressly conceives about the idea of appointment on deputation and absorption of deputationist working with the Authority taken on deputation from the Union Government or any State Government or a Local Authority or a Corporation or any other organisation by whatever name called. Therefore, the submission of learned Counsel for the petitioners that there is no express provision for absorption of deputationist in the services of Authority either under the Act 1976 or under the Service Regulations 1981 framed thereunder appeals to be wholly misplaced hence has to be rejected. In our opinion, therefore, the absorption of contesting private respondents- deputationists of both the writ petitions in the services of the Authority which has been done after seeking permission from their parent departments/organisations cannot be held to be without Authority of law or contrary to any provisions of law, rather the same has to be held well within the Authority of law and cannot be called in question on that score.
34. In this connection, learned Counsel for the petitioners has cited a decision of Hon'ble Apex Court rendered in Jamil Ahmad v. Industrial Development Commissioner and Ors. (2004) 13, SCC 736, wherein m appellant was a Senior Inspector in Railway Protection Special Force. He had worked on deputation with New Okhla Industrial Development Authority in short the Authority. The Authority proposed permanent absorption of the appellant in the terms of letter dated 18.3.1993. The appellant communicated his willingness to be permanently absorbed in the Authority. In the said communication addressed to his parent department it was stated that if the appellant is permanently absorbed in the Authority, he will sever his lien from the Railway and submit resignation. The Authority by letter dated 13th April informed the Inspector General R.P.S.F. that the absorption of the appellant in the Authority has been accepted and requested R.P.S.F. to relieve him at the earliest so that he may join the Authority. With reference to Railway Board letter, considering the resignation which the appellant had tendered from Railway Service on 28.4.1993 the Authority was informed by Railways that the appellant has been relieved on 28lh April so as to report in the Authority's office for permanent absorption. The office order dated 7th May issued by the Authority records that the appellant has joined the Authority w.e.f. 28.4.1993. The personnel department of the Authority issued an order dated 7.1.1994 fixing pay of appellant, consequent upon his permanent absorption w.e.f. 28.4.1993. After nearly 8 years by office order dated 6.6.2002 the Authority took a unilateral decision that the order dated 7th January 1994 regarding permanent absorption of the appellant is ineffective due to non approval of the Board of the Authority. The said order was passed on account of a letter dated 5.6.2002 having been received by the Authority from the Industrial Development Department of Government of Uttar Pradesh. The reason was that the approval of the U.P. Government prior to absorption of the appellant had not been sought as per Absorption Rules 1984. Consequently, appellant was relieved from the Authority and directed to report back to the Director General R.P.S.F. Railway Board. The aforesaid order dated 6.6.2002 was challenged by the appellant in a writ petition filed before this Court. The writ petition was parity allowed and order dated 6.6.2002 was quashed holding that the order was passed without giving any opportunity of hearing to the appellant who had been permanently absorbed. However, it was left open to the Authority to pass fresh order after hearing the parties. The appellant being aggrieved by that part of the impugned judgment and order which directs and permits the Authority to pass a fresh order recalling the permanent absorption approached the Hon'ble Apex Court.
35. In the aforesaid case although the question was raised regarding legal impact of prior approval of Board for absorption of appellant but in stead of deciding the effect of absence of approval for absorption by the Board of the Authority in para 9 of the decision the Hon'ble Apex Court has held as under:
9. On the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellant having resigned from the Railways and having been absorbed in the Authority eight years back, cannot be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of the parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such discrepancy which is now pleaded as a reason by the Authority. It is not the case of the respondents in the order dated 6.6.2002 that the appellant sought to enter the Authority from back door.
Thus, in our opinion, the observation of the Hon'ble Apex Court m aforesaid case supports the ease of contesting private respondent-deputationists instead of petitioners of these writ petitions, as the deputationists have already been absorbed in the services, of respondent No. 2, in accordance with the provisions of law after seeking permission from their parent departments/organizations as held by us herein before.
36. Now we would take next question as to whether the past service, rendered by contesting private respondents-deputationists of both the writ petitions referred hereinbefore in their parent organization in their respective grade can be counted for the purpose of determination of their seniority in the services of Authority or not? In this connection as indicated herein before the submission of learned Counsel for the petitioners in nut shell is that contesting private respondents (deputationist) have joined the services of the Authority on their own accord and sweet-will by moving application for then appointment on deputation without imposing any condition thereon in respect of protection of their past services rendered by them in equivalent post in in their parent department before joining their post on deputation or while absorption of their services in the Authority and after having been absorbed in the services of the Authority, their past services rendered in their parent department and organization cannot be counted for the purpose of determination of seniority as in the order of absorption itself there is nothing to indicate that their past services have been protected by the Authority while absorbing them in the services of Authority. Besides this, further submission is that Regulation 24(2) of Service Regulation, 1981 which is relevant Regulation for determination of seniority also stipulates that where the seniority of an employee has not been specifically fixed by an order of appointing officer it will ordinarily be fixed on the basis of the date of his initial regular appointment in the category. While elaborating his arguments learned Counsel for the petitioners have submitted that since seniority of the employees of the Authority is governed by the said rules, therefore, the same has to be determined strictly in accordance with the provisions of said rules. And since prior to the date of permanent absorption of services of deputationists in the services of the Authority, they were not regular employees of the Authority and it is only on the date of their permanent absorption they could become regular employee from such date, therefore, their seniority could be fixed from the date of their absorption, which is virtually date of initial regular appointment of the deputationists in the services of the Authority, accordingly there can be no scope to count past services of deputationists in respective category or grade rendered by them in their parent department or organization prior to their absorption in the services of the Authority while determining their seniority in the services of the Authority, contrary to it. in the impugned seniority list dated 2.6.2006 the respondent No. 2 has wrongly determined the seniority of contesting private respondents- deputationists by taking into account their past services rendered in their parent department/organisation. In support of their contention learned Counsels for the petitioners have cited several decisions of Hon'ble Apex Court to which we would deal a little later.
37. Contrary to it, learned Counsel appearing for Authority and private contesting respondents (deputationists) have vehemently urged that it is not in dispute that the contesting private respondents were already working in substantive and regular capacity in the different Government Department, Corporation and undertaking prior to their joining with the service of the Authority on deputation. After serving for a requisite period they have applied for their absorption in the services of Authority and order has been passed by competent Authority permitting them to be absorbed in the services of the Authority in equal rank to which they were working in their parent departments in accordance with law. It is no doubt true that while passing the order of absorption of deputationists in the services of the Authority no specific order regarding the protection of their past services has been passed but since under the Rules of recruitment the deputation is one of the source of recruitment m the services of the Authority under Service Regulation 1981 and there is nothing to indicate in the order of their respective absorption that their past services rendered in their parent departments shall not be counted for the purpose of determination of their seniority inasmuch as in absence of any contrary provisions shown under any rules governing their services, it would be presumed that on absorption of services of deputationist, the services rendered by them in substantive or regular capacity in their respective parent organizations shall be counted and computed towards the length of service for determination of seniority in the services of the Authority. It is further submitted that Regulation 24(2) of Service Regulation 1981 does not any manner excludes the past services of deputationist who have been absorbed in the services of the Authority, thus as natural consequence of absorption of their services in the Authority, the services rendered by them in their parent organization prior to joining of service of the Authority on deputation shall be computed and counted for die purpose of seniority as the deputation is nothing but it is merely a transfer of service from one department/organization to another department/organization and on such transfer the transferee would not lose his past services accrued on his credit in his parent department/organization. In support of his submission learned Senior Counsel appearing for deputationist has cited several decisions of Hon'ble Apex Court. to which, we will deal with herein after.
38. In K. Madhavan and Anr. v. Union of India and Ors. And Dwarika Nath v. Union of India and Ors. , two writ petitions were jointly decided by the Hon'ble Apex Court. In the first writ petition, two petitioners K. Madhvan and Sen were directly recruited as Deputy Superintendent of Police (DSP) in Delhi Special Police Establishment in the Central Bureau of Investigation (CBI) on 6.7.1963 and 10.8.1963 respectively. Respondent No. 5 who was appointed to the post of DSP on 13.7.1962 in Rajasthan State Police was sent on deputation to CBI as DSP on 1.07.1967. A dispute between the parties arose with regard to their respective seniority. While Madhavan and Sen both were confirmed on the post of DSP in the CBI on 30.3.1967 and respondent No. 5 was confirmed as DSP in the Rajasthan State Police on. 1.12.1964. The petitioners Madhavan and Sen were promoted to the rank of Superintendent of Police in CBI w.e.f. 21.10.1971 and 25.1.1972 respectively. Respondent No. 5 was appointed to the post of SP on 28.10.1972. The respondent No. 2 published a seniority list of departmental SPs on 1.10.197S. In that seniority list respondent No. 5 O.P. Sharma was shown below both the petitioners. Respondent No. 2 also published another seniority list on 17.10.1981. In thai seniority list: the date of appointment of respondent No. 5 was mentioned as 21.10.1971 (Notional) in stead of 28.10.1972 and on the basis of such notional date of appointment to the post of SP in CBI the name of respondent No. 5 was placed above the petitioners name in that seniority list. The petitioners felt highly aggrieved by the said seniority list showing them as junior to the respondent No. 5 Sri O.P. Sharma on the basis of notional date of appointment with retrospective effect from 21.10.1971 i.e. just before the appointment of Madhavan on 21.10.1971. The petitioners have challenged the said seniority list and have also challenged the appointment of respondent No. 5 on the post of SP (CBI) by placing reliance upon the Special Police Establishment Executive Staff Recruitment Rules 1963 (hereinafter referred to as 1963 Rules) for the appointment of deputationists to the post of SP. And Central Bureau of Investigation (Deputy General of Police/Deputy Director) Recruitment Rules 1966 and 1975 hereinafter referred to as the 1966 and 1975 Rules. While dealing with the issue in para 10 of the decision, Hon'ble Apex Court has held as under:
10. The 1975 Rides which are relevant for the purpose do not explain what is meant by the expression 'on a regular basis'. 'The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis; the appointment is not on a regular basis. The expression 'on a regular basis' in the 1975 Rules cannot in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the Higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the date of appointment. In our view, therefore, the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contradiction to appointment on ad hoc or stop-gap or purely temporary basis. Respondents, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG.
39. In the next case jointly decided by Hon'ble Apex Court the principal question that was involved was whether the length of service of petitioner Dwarika Nath in the Border Security Force (BSF) should be taken into account for the purpose of deciding his seniority in the CBI in the rank of SP? On 14.6.1976 the petitioner was regularly promoted to the post of Deputy Commandant in BSF which according to him was equivalent to the grade of SP in CBI. The respondent No. 5 was promoted on 4.8.1978 and respondents No. 6 and 7 were promoted on the date i.e. 28.7.1978 to the post of SP in CBI. The petitioner came to join the CBI on deputation as SP on 29.9.1979 and was permanently absorbed in the CBI in the rank of SP on 28.10.1983. The respondents No. 5 to 7 were confirmed in the post of SP w.e.f. 4.8.1980. The question that arose for consideration was whether in computing the seniority of petitioner Ins length of service from 14.6.1976 when he was Deputy Commandant in BSF should be taken into consideration or not? If the services from 14.6.1976 is taken into consideration, he would undoubtedly be senior to the respondents No. 3 to '/who were appointed in 1978. In this case, in para 11 and 12 of the decision the original as well as amended Rule 5 of 1963 Rules have been quoted while dealing with earlier connected case. In original Rule 5 d Rules 85% quota was provided for appointment by way of transfer on Imputation which was subsequently altered to 75% by amendment w.e.f. to 15.1.1971 and remaining posts were liable to be filled by promotion. In that statutory backdrop of the case, Hon'ble Apex Court in para 21 of the decision ~-|held that when a deputationist is permanently absorbed in the C.B.I. He is under the rules appointed on transfer. The pertinent observations made by the Hon'ble Apex Court in paragraphs 19, 20 and 21 in this regard are extracted as under:
19. ...In our opinion, the period from 14.6.1976 when the m4l petitioner was promoted to post of Deputy Commandant in the BSF up to his joining the CBI on deputation on 29.7.1979, should be taken into consideration for the purpose of deciding his seniority in the CBI in the rank of SP.
20. ...The petitioner was a permanent officer on 14.6.1976 in the grade of Deputy Commandant which is equivalent to the grade of SP in the CBI. It may be that he was not in the CBI on that date. But, in our view, that will not make any difference. We do not think that the) Office Memorandum dated 22.12.1959 stands in the way of counting the seniority of the petitioner with effect from 14.6.1976.
21. We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to , another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre- existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadres. See R.S. Mokashi v. I.M. Memon ; Wing Commander J. Kumar v. Union of India .
40. In K. Anjaiah and Ors. v. K. Chandraiah and Ors. the brief fact of the aforesaid case was that the Service Commission in Andhra Pradesh was formed under the provisions of Andhra Pradesh College Service Commission Act 19S5 (hereinafter referred to as the Act). The employees of this Commission came on deputation from the State Government in different batches and such deputationists were managing the affairs of the Commission. The Commission was itself constituted under Section 3 of the Act. Section 7 of the Act deals with the Staff of the Commission and it stipulates that the Secretary of Commission shall be appointed by the Government and other employees as the Commission may with the previous approval of the Government appoint from time to time. Section 7(3) of the Act provides that the term and condition of service of such employees of Commission shall be such as may be provided for by the regulation. The Commission asked for exercise of option by those- employees who were desirous to be absorbed permanently in the Commission. The private respondents are those employees who are on deputation with the Commission from the State Government and they approached the Administrative Tribunal challenging the validity of Regulation 9(2) and Tribunal by impugned judgment has held the said provision to be ultravires. Against the judgment of Tribunal the aggrieved party approached the Hon'ble Apex Court. While dealing with the question of seniority of deputationists as contemplated by Regulation 9(1) and 9(2) of the said Regulation in paras 7 and 8 of the decision the Hon'ble Apex Court has held as under:
7. ...The question that arises for consideration is whether the benefits conferred upon a deputationist under Regulation 9(1) have been taken away by Regulation 9(2). The Tribunal has come to the aforesaid conclusion and has accordingly struck it down. If a literal meaning is given to the language used in Regulation 9(2), it may appear that the benefits conferred under Regulation 9(1) are given a go-by and the past services rendered by the deputationists in their parent cadres is not being taken into account while determining their inter se seniority in the new cadre under the Commission. But it has been contended by Mrs. Amareswari, learned Senior Counsel appearing for the State Government, who is the authority for approval of the Regulation that the phraseology used in Regulation 9(2) is nodoubt a little cumbersome but it conveys the meaning that the total length of service of these deputationists should be taken into account for determining the inter se seniority in the new service under the Commission and the past service is not being wiped off. We find considerable force in this argument and reading down the provision of Regulation 9(2) we hold that while determining the inter se seniority of the deputationists in the new cadre under the Commission after they are finally absorbed, their past services rendered in the Government have to be taken into account. In other words the total length of service of each of the employees would be the determinative factor for reckoning their seniority in the new services under the Commission. Mr. Ram Kumar, learned Counsel appearing for the appellants, vehemently urged that length of service under the Commission should be the criteria for determining the inter se seniority but we are unable to persuade ourselves to agree with the aforesaid submission of the learned Counsel. It is not known that when the persons were brought over to the Commission from the Government on deputation whether their option had been asked for or not. Further such a principle if accepted then the inter se seniority would be dependent upon the whim of the Government, and we see no rationale behind the aforesaid principle. The two decisions on which Mr. Ram Kumar, learned Counsel placed reliance in support of his contention in fact do not lay down the aforesaid proposition. We have, therefore, no hesitation to reject the submission of Mr. Ram Kumar.
8. In the aforesaid premises we dispose of these appeals by reading down the provisions of Regulation 9(2) in the manner as indicated earlier rather than striking down the same and hold that while determining the inter se seniority of the deputationists in the services of the Commission their entire length of continuous service shall be the basis. These appeals are disposed of accordingly. But in the circumstances there will be no order as to costs.
41. In M. Ramachandran v. Govind Ballabh and Ors. the dispute was regarding inter-se seniority of the employees of Central Administrative Tribunal (hereinafter referred to as the CAT) who were recruited from time to time as per recruitment but came to be absorbed on the same day in the terms of Rule 5(1) of Central Administrative Tribunal (Group 'B' & 'C Misc. Posts) Recruitment Rules, 1989 (hereinafter referred to as the Rules). One set of employees claimed ..their seniority from, the date of their deputation to the aforesaid service of CAT and the other set of employees prayed for counting of the period of their service to the equivalent posts held by them in their parent department before deputation and absorption in the service. On the application filed by respondent No. 1 the CAT accepted the former plea and directed the determination of seniority of the employees of CAT from the date of their deputation. Such directions were issued on the basis of office Memorandum and departmental instructions after holding that there did not exist any provision in the Rules for the purposes of determination of seniority of persons recruited to the service by absorption on the same day. Not satisfied with the findings of Tribunal the appellants had preferred aforesaid appeal before Hon'ble Apex Court. While placing reliance upon earlier decisions in R.S. Makashi v. I.M. Menon , Winy Commander J. Kumar v. Union of India , K. Madhavan and Anr. v. Union of India and Ors. (supra), K. Anjaiah and Ors. v. K. Chandraiah and Ors. (supra) the Hon'ble Apex Court has held that all the employees recruited in service under Rule 5(1) are entitled to the benefit of service on equivalent posts in their parent departments. The pertinent observations made in para 10 of the decision are extracted as under:
10. We are of the considered opinion that Sub-rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under Sub-rule (1) of Rule 5. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to Sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under Sub-rule (2) as is the present case of the persons appointed/recruited on the same date. In such a case the seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being specific rule, resort be had to the Official Memorandum relied upon by the respondents. Seniority is a relevant term having reference to the class, category and the grade to which, the reference is made. Length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length, of service for the purposes of determining the seniority. In other words the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the Rules does not, in any way, show and rightly so that the rule making authority had even intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.
42. In Sub-Inspector Rooplal and Anr. v. Lt. Governor Through Chief Secretary, Delhi and Ors. , the question involved was whether a Sub-Inspector who was appointed as such in Border Security Force (for short B.S.F.) when transferred on deputation to the Delhi Police in the cadre of Sub-Inspector (Executive) on being permanently absorbed in the transferred post is entitled to count his substantive service as Sub-Inspector in B.S.F. for the purpose of his seniority in the cadre of Sub- Inspector (Executive) in Delhi Police or not? The appellants were Sub- Inspector of Border Security Force (B.S.F.) who were initially taken on deputation in Delhi Police as Sub-Inspector (Executive) and were later on absorbed in Delhi Police in the same capacity. While fixing their seniority in Delhi Police the service already rendered by them as Sub-Inspector in B.S.F. was not taken into consideration on the ground that pay scale of Sub-Inspector in B.S.F. Was not equivalent to pay scale in Delhi Police. Besides, the respondents also relied on Government of India OM dated 29.5.1986 to support their action, Clause (iv) of which reads that in case of a person who was initially taken on deputation and absorbed later (where the relevant recruitment rules provided 'Transfer on deputation/transfer'), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has already been holding on the date of absorption, the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is later. The Hon'ble Apex Court has held that there is no reason why the appellants on being absorbed in equivalent cadre in the transferred post should not be permitted to count their service in the parent department and also overruled the objection of respondents with regard to equivalence of posts and further offending words "whichever is later" in the office memo held to be violative of Articles 14 and 16 of the Constitution of India.
43. The pertinent observations made by Hon'ble Apex Court in para 15,17,18 and 23 of the aforesaid decision are extracted as under:
15. We will now take up the question whether the appellants are entitled to count their service rendered by them as Sub-Inspectors in BSF for the purpose of their seniority after absorption as Sub- Inspectors (Executive) in the Delhi Police or not. We have already noticed the fact that it is pursuant to the needs of the Delhi Police that these officials were deputed to the Delhi Police from BSF following the procedure laid down in Rule 5(h) of the rules and subsequently absorbed as contemplated under the said rides. It is also not in dispute that at some point of time in BSF, the appellants' services were regularised in the post of Sub-Inspectors to the Delhi Police Force. Therefore, on being absorbed in an equivalent cadre in the transferred post, we find no reason why these transferred officials should not he permitted to count their service in the parent department....
17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "pay" will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy . In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "not equivalent". In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha , wherein at SCC para 8 of the judgment, this Court held: (SCC pp. 10 & 11) Learned Counsel for the respondent is therefore right in contending that equivalence of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility....The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts.
18. Therefore, in our opinion, the finding of the Tribunal that the posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent, is erroneous, and the same is liable to be set aside.
23. It is clear from the ratio laid down in the above case that any rule, regulation or executive instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned memorandum in its entirety does not lake away the above right of the deputationists and by striking down the offending part of the memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the appellant-petitioners and the offending words in the memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned memorandum. Consequently, the right of the appellant- petitioners to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored.
44. Thus from a close analysis of aforesaid decisions, it appears that in K. Madhvan's case (supra) the deputation was provided as one of the source of recruitment amongst the sources of recruitment under the statute governing the recruitments on the said particular post wherein it has been held that general principle that in absence of any specific provision to the contrary the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. In such eventuality deputation is regarded as transfer from one Government department to another. Indeed, when a deputationist is permanently absorbed in the service, he is under rule appointed on transfer. On such a transfer the Government servant shall not lose his past services rendered in his parent department, in other words, the transfer cannot wipe out his length of service in the post from which he has been so transferred. In K. Anjaia's case (supra) while dealing with the relevant rule the Hon'ble Apex Court has categorically held that while determining the inter se seniority of the deputationists in new cadre after they are finally absorbed, their past services rendered in their parent department or organisation have to be taken into "account. The aforesaid proposition has been further explained in M. Ramchandran's case (supra) holding that length of service is a recognised method determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to length of service for the purpose of determining the seniority, in other words, the period of holding of equivalent post in the parent department would be relevant period to be taken note of for the' purpose of determining the seniority. The expression 'equivalent post' has been subsequently explained by Hon'ble Apex Court in Sub Inspector Roop Lal's case (supra) by taking aid of decision rendered by Hon'ble Apex Court earlier in P.K. Roy's case (supra) AIR 1968 SC 850 wherein the Hon'ble Apex Court has explained the true import of expression 'equivalent post'. In Roop Lai's case (supra) the Apex Court went on further holding that any rule, regulation or executive instruction which has the effect of taking away the services rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution hence liable to be struck down, consequently, the right of appellants of the aforesaid case to count their services from the date of their regular appointment in the post of Sub Inspector in B.S.I7, while computing their service in the cadre of Sub Inspector (Executive) in Delhi Police was restored. Thus, in view of the aforesaid discussion, it follows that the services rendered by deputationists in parent department or organisation on equivalent post in regular and substantive capacity before joining their post on deputation with another department or organisation shall be counted and computed towards length of their service for determination of seniority on deputed post. It is needless to say that the services rendered by them before their absorption on deputed post shall also be counted for the purpose of their seniority on deputed post after absorption on the said post.
45. Now applying the aforesaid legal principle enunciated by Hon'ble Apex Court in facts and circumstances of the instant case, we find that Regulation 24 of the Service Regulations, 1981 deals with the determination of seniority of employees of Authority, it is not in dispute that Clause (2) of Regulation 24 is relevant Regulation for the purpose of question in controversy involved in the case. Clause (2) of Regulation 24 inter alia provides that where the seniority of an employee has not been specifically fixed by an order of appointing officer it will ordinarily be fixed on the basis of the date of his initial regular appointment in the category. Except to the aforesaid provision no other provision or office memorandum has been shown to us which specifically deals with the determination of seniority of deputationist on absorption in the services of the Authority, therefore, in our opinion, the rule/regulation is silent regarding the same. It is to be noted that the date of initial regular appointment in respective category of post is one thing and date of permanent absorption of deputationisi in aforesaid category of post is another thing. It is no doubt true that deputationist can not become regular employee of the Authority under Regulation 2 of Service Regulations 1981 unless absorbed in the service of the Authority as a regular employee and such persons shall continue to be governed by rules applicable to him in relation to his service under his parent department and organisation so far as applicability of the service regulations 1981 is concern and unless he becomes regular employee of the Authority, which can be possible only on his permanent absorption in service of the Authority, his seniority can not be determined under Regulation 24 of the Service Regulation 1981 for simple reason that the aforesaid regulations will not apply to him by that time, but it is also nowhere mentioned in the Service Regulation, 1981 or any other office order or circular issued by the Authority in this regard that the seniority of deputationists shall be counted from the date of their permanent absorption in the service of Authority in their respective category of posts. In case, it would have been intention of rule making authority that the seniority of deputationists shall be determined from the date of permanent absorption of deputationists in the services of Authority, in that eventuality different phraseology would have been used while drafting the aforesaid regulations or by adding any explanation thereunder different intention would have been shown or the provisions of said regulations would have indicated that the services rendered by deputationists in their parent department or organization on equivalent posts shall not be counted on absorption in respective categories of posts in the Authority or by any general office memo or individual order/letter they would have been communicated showing the intention of the Authority to do so while seeking their absorption in the services of the Authority but nothing of the aforestated sort has been shown to us. Therefore, a distinction has to be drawn, between the expression 'on the basis of the date of his initial regular appointment in the category' and 'from the date his permanent absorption in the said category'. In our opinion, both the expressions connote different meaning and comprehend different situations altogether.
46. Besides, it is also not in dispute that 'deputation' is one of the source amongst the sources of recruitment under Regulation 16(1)(c) of the Service Regulation 1981. We have already held herein before that the absorption of deputationist could be validly made in the services of Authority and no fault can be found in the absorption of services of deputationist in the services of Authority. In such facts and circumstances of the case, in our opinion, law laid down by Hon'ble Apex Court in K. Madhvan's case (supra) that the general principle is that in absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority on that post or eligibility for higher post is fully applicable. In case the seniority of deputationist of instant case may be fixed on the basis of date of his initial regular appointment in the category of post by treating the date of his permanent absorption in the services of Authority as date of his initial regular appointment in the category of posts held by him in the Authority by excluding the services rendered by him on respective category of posts in parent department, in absence of any rule to such effect or any individual orders intimating the deputationists before their absorption in the services of the Authority that their past services rendered on their respective posts in their parent department/organization shall not be counted towards computation of their length of service in determination of their respective seniority, it would be against all the rules of service jurisprudence rendering it, unreasonable and irrational particularly when the deputation is one of the source of recruitment in the service of the Authority and in such eventuality as held by the Hon'ble Apex Court in aforesaid case that there is not much difference between the deputation and transfer. Indeed when a deputationist is permanently absorbed in the service he is under the Rules appointed on transfer. In other words, deputation is regarded as the transfer from one Government department to another, therefore, in our opinion it is immaterial that deputationists have sought their appointment on deputation on their own accord or acts of volition or transferred in administrative exigencies of service. Virtually where the deputation is provided under the source of recruitment in particular service rules or regulations in contradistinction to other sort of deputation or transfer, it is always open for eligible and desirous person to apply for such appointment on deputation otherwise without any such application or consent for transfer on deputation how it would be possible to appoint any person on deputation m another department or organization or unit particularly when the absorption Rules specifically provider for moving an application for absorption on deputed post, showing his willingness for such absorption at the instance of deputationist, besides other formalities are required to observed by both the department before such absorption Therefore, the submission of learned Counsel for the petitioners that deputationists-respondents,, themselves have sought their transfer to be appointed on deputation in services of Authority on their own acts of volition without placing any condition thereon in respect of protection of their past services rendered on regular basis in their parent department or organisation before joining the post on deputation or while absorption in the service of the Authority is misplaced and has to be rejected.
47. It is also well settled that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and preserved by taking the same into account in determining their ranking in the new service cadres. The aforesaid view taken by the Hon'ble Apex Court in R.S. Makshi v. I.M. Menon and in Wing Commander J. Kumar v. Union of India has been reiterated in K. Madhvan's case and same principle has been consistently followed by Hon'ble Apex Court in its subsequent decisions including K. Anjaiah's case (supra), M. Ramachandran's case (supra) and Sub-Inspector Rooplal's case (supra) and there appear no detraction by the Hon'ble Apex Court from the aforesaid views taken in the aforesaid cases. In K. Anjaiu's case (supra) Hon'ble Apex Court has held -that while determining inter se seniority of deputationists in new cadre after, they are finally absorbed, their past services rendered in their parent department or organisation have to be taken into account. In M. Ramchandran's case (supra) the Apex Court further explained that such length of service shall have reference to the class, category or grade to which the parties were holding at relevant time, it implies that total length of service is not relevant for determining the seniority but length of service 10 a particular class, category or grade is relevant consideration for the purpose of counting the period with respect of length of service for the purpose of determining the seniority. In other words, the period of holding of equivalent post in parent department would be relevant period to be taken note of for the purpose of determining the seniority. In Sub Inspector Roop Lal's case (supra) the Hon'ble Apex Court went on further holding that any rule, regulation or executive instruction which has the effect of taking away the service rendered by deputationist in an equivalent cadre in the parent department while counting his seniority in deputed post would be violative of Articles 14 and 16 of the Constitution of India, hence liable to be struck down. Learned Counsel for the petitioners could not point out any case decided by Hon'ble Apex Court before us where the deputation has been provided as one of the source of recruitment amongst the sources of recruitment, in such eventuality the past services rendered by deputationists in regular or substantive capacity in equivalent post prior to joining the post on deputation along with the period of deputation have not been counted towards length of service for determination of seniority of deputationists, as such submission of learned Counsel for the petitioners that the seniority of deputationists-respondents of the instant cases can be determined only from the date of their absorption in the services of the Authority is wholly without any legal basis and misplaced, accordingly has to be rejected.
48. In view of foregoing discussion, we do not find any difficulty in holding that the services rendered by deputationists-respondents of present case from the date of their initial regular appointments on equivalent post in their parent department in respective categories of posts held by them in the services of the Authority, shall be counted and computed towards the length of their service for the purpose of determination of seniority in the services of the Authority. Any other interpretation in given facts and circumstances and statm on backdrop of the case, would be unjust and would create undue hardship n to the deputationist-respondents and would be irrational and against all the norms of service jurisprudence. Therefore, Regulation 24(2) of Service Regulation, 1981 has to be interpreted harmoniously, so as to include the past services rendered by deputationists-respondents in their parent department or organisation on equivalent post (as explained in P.K. Roy's case AIR 1968 SC 850) in regular or substantive capacity4pndr to joining the posts of deputation in the services of the Authority towards computation of their length of service for determination of their seniority, if the said regulation as it stands has to survive and withstand to reasons and test of Article 14 and Article 16(1) of the Constitution of India as held by the Hon'ble Apex Court in Sub Inspector Roop Lal's case. As held earlier that the Regulations are silent in this regard. therefore, we further hold that so long as the aforesaid regulations are not suitably amended, the aforesaid observations shall be read into it.
49. At this juncture, we would like to point out that in support of the case of deputationist learned Counsel for deputatfonists has also placed reliance upon the decision of Division Bench of this Court rendered in Sripal Bhati and Ors. v. State of U.P. and Ors. in Civil Misc. Writ Petition No. 39161 of 2006 decided in December 2006 and the decision of another Division Bench of this Court dated 21.3.2003 rendered in S.A. Rizvi v. Greater Noida Industrial Development Authority wherein similar controversy was involved before this Court. Since we have reached on same conclusion on our own different reasons, therefore, we need no?-te:7discuss and examine the aforesaid decisions rendered by two Division Benches of this Court in support of the case of deputationists.
50. Now we will examine the cases cited by learned Counsel appearing for the petitioners. In Union of Indian and Anr. v. V.N. Bhat , the respondent was previously working as Lower Division Clerk in the Ministry of Defence since the year 1962. He sought transfer from the Ministry of Defence to the office of Chief Post Master General. The Directorate has an order dated 26.4.1982 allowed the aforesaid transfer, as a result of which the respondent joined his service in the postal department on 24.5.1982 as Lower Division Clerk. He took the seniority at bottom of the gradation list as per departmental rules. On 17.12.1983 the appellant of the aforesaid case was introduced the time bound promotion scheme in the operative cadres m the post and telegraph department for providing relief to the employees stagnating in the Lower grades by improving their promotional avenues. The postal department decided to extend one time bound promotion scheme and BCR scheme for those employees who have rendered 16 years and 26 years of service as postal assistants respectively. These schemes were applicable to the administrative staff working in the circle office and to the office in which the respondent was working by converting the post of lower division clerk into postal assistants. The respondent was given benefit of said scheme and his post was converted to that of postal assistant. Subsequently, on an enquiry from the Postal Directorate by department of post, a clarification was received on 8.6.1994 wherein it was stated that these schemes will be operative only with regard to the officials who have rendered service 16/26 years in the postal department. As per this clarification the benefit under the BCR scheme given to the respondent was withdrawn and he was reverted to the post earlier held by him. It is under such circumstances the respondent on 15.11.1990 filed an original application before Central Administrative Tribunal. Chandigarh bench challenging his withdrawal of one time bound promotion. The Central Administrative Tribunal by impugned order allowed the application and set aside the order of withdrawal of one time bound promotion given to the respondent. It is against the said order the Union of Indian has filed appeal before the Hon'ble Apex Court. While placing reliance upon Dwijen Chandra Sarkar v. Union of India , the Hon'ble Apex Court has held even in cases relating to request transfers this Court has held that the past services of will count for eligibility for certain purposes. though it may not count for seniority. Thus, the facts of the aforesaid case are quite distinguishable from the facts of the instant case, as there is nothing to indicate that the post upon which the respondents of the aforesaid case sought transfer was liable to be filled by deputation/transfer also and deputation or transfer was one of the source of recruitment of post in question. Besides this, it- appears that the respondent of the aforesaid case has taken the seniority at bottom of gradation list as per departmental rules on the transferred place of posting in postal department as transfer was on his own request and virtually the question of one time bound promotion was involved in the aforesaid case and only for the purpose of promotion his length of service in parent department was counted, therefore, in our opinion the aforesaid decision has been rendered by the Hon'ble Apex Court in a totally different factual and statutory backdrop of the aforesaid case, as such can be of no assistance to the case of petitioners.
51. In Indu Shekhar Singh and Ors. v. State of U.P. and Ors. , the respondents before Hon'ble Apex Court were appointed in U.P Jal Nigam. They were deputed to Ghaziabad Development Authority on diverse dates. By reason of U.P. Act No. 21 of 1985 the State of U.P. inserted Section 5-A in the U.P. Urban Planning and Development Act I 1973 (hereinafter referred to as 'the Act1) to create centralised services for all Development Authorities. Sub-section 2 of Section 5-A of the said .Vi prescribed that upon creation of a Development Authorities centralised service person serving on the posts included in such service immediately be lore such creation not being a person governed by U.P. Palika Centralised Service Rules, 1966 or serving on deputation, shall, unless he opts otherwise, be absorbed in such service (a) finally, if he was already confirmed in his post and (b) provionally, if he was holding temporary or officiating appointment. Admittedly, the U.P. Jal Nigam was not and has never been a Development Authority, the employee on deputation to the Development Authorities from the U.P. Jal Nigam could not be absorbed in the centralised services in the terms of Sub Section 2 of Section 5-A of the Act. However, the respondent were given an option stating as to whether they would like to be absorbed in the Authorities Centralised Service subject to conditions specified therefor. One of the said conditions was that their past services rendered in the U.P. Jal Nigam would not be reckoned for the purposes of determination of seniority and they would be placed below the officers who have been appointed on regular basis in centralised services. Accepting the said offer of the State the respondents resigned from the service of the U.P. Jal Nigam and absorbed in the services of the Development Authorities. Thereafter, in view of Rule 7 of Uttar Pradesh Development Authorities Centralised Services Rules 1985. the appellants were placed above the respondents in the seniority list. Questioning the said order, the respondents filed a writ petition before High Court praying. inter alia, for the relief that they should be given benefit of past service rendered by them in their parent departments. The High Court on the basis of Sub Inspector Roop Lal's case allowed the writ petition, hence the aforesaid appeal before Hon'ble Apex Court.
52. In view of the aforesaid factual and statutory backdrop of the case the Hon'ble Apex Court has held that the term and conditions of recruitment/appointment to the post and seniority and other terms an conditions of the service are governed by the statutory rules. The statute provides that only those employees who were in the employment of different Development Authorities shall be borne to the cadre of centralised service. The U.P. Jal Nigam was not a Development Authority. It was constituted under different statute. It was an autonomous, body. The employees working with the U.P. Jal Nigam might have been deputed to the service of the Development Authority but only by reason thereof they did not derive an\ right to be absorbed in the services. The respondents were deputed to Ghaziabad Development Authority on their own request. They were presumed to be aware that they were not borne in the cadre of centralised services. The rules do not provide for appointment by way of transfer. There is no provision for appointment on permanent absorption of deputed employee. In terms o! Section 5-A of the Act, no provisions exist for recruitment of deputationists Appointment by way of absorption of a deputed employee would amount fresh appointment which may be subject to the offer given by the Authority. The State was making an offer to the respondents not in the terms of any specific power under the Rules but in exercise of its residuary powers (assuming that the same was available). The State, therefore, was within its right to impose conditions. The respondents exercised their rights of election They could have accepted the said offer or rejected the same. Since the accepted the said offer without any demur and once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal. They must have exercised their option having regard to benefits to which they were entitled to in the new post. Once such option is exercised, the consequences attached thereto would ensue.
53. From the aforesaid discussion, it is clear that the facts of the instant ease is quite distinguishable from the facts and circumstances of the Indu Shekhur Singh's case (supra). In the instant case the deputation is source of recruitment in the post-in question .and no condition was laid down by the Authorities while absorbing the deputationists of present case in the services of Authority that their seniority shall be counted either from the date of their permanent absorption in the Authority or they will not get any benefit of their past services rendered on equivalent posts in their parent department and shall he posted/appointed as junior most persons from regularly appointed persons prior to their joining on deputed post or prior to their permanent absorption on such post in the centralised service of Development Authorities. In absence of any statutory rule or executive order or office memorandum to such effect, the benefit of past services rendered by deputationists of present case cannot be taken at par with the deputationists of Indu Shekhar Singh's case decided by Hon'ble Apex Court who were employees of U.P. Jal Nigain and could not be legally absorbed in the services of Development Authorities Centralized Service under Section 5-A of the Act and Rules. Besides this, they were given an option stating as to whether they would like to be absorbed in the services of Authorities Centralised Service subject to conditions specified therein. One of the said condition was, their past services rendered in the U.P. Jal Nigam would not be reckoned for the purpose of determination of seniority and the would be placed below the officers who had been appointed on regular basis in Centralised Services after their absorption. Despite therefore the respondents of the aforesaid case resigned from service of the U.P. Jal Nigam and accepted the said offer of the Authority. Thus, the respondents have exercised their right of election and appointment by way of absorption on deputed post, winch was held to be fresh appointment in the centralised services of Development Authorities. In Section 5-A of the said Act no provision exist for recruitment by way of deputation. The appointment by way of absorption of deputed employees was held, to be a fresh appointment. Therefore, facts and circumstances of the instant case are quite distinguishable from the facts and circumstances of the case of Indu Shekhar Singh'scase (supra). Besides tin from close analysis of decision rendered by Hon'ble Apex Court in huh, Shekar Singh's case, it appears that the decisions cited by deputationists of present case referred hereinbefore in our judgment has been considered by Hon'ble Apex Court in Indu Shekar Singh's case but the principle of law laid down in aforesaid cases has neither been detracted from nor any deviation appears from the aforesaid principle in given facts and circumstances o! the case, therefore, in our opinion, the decision rendered by Hon'ble Apex Court in Indu Shekar Singh's case can be of no assistance to the case of petitioners.
54. In K.P. Sudhakaran and Anr v. State of Kerala and Ors. the appellants and private respondents were recruited as Lower Division Clerks (LDCs) in the registration department in different districts of the State of Kerala in the cadre hierarchy. Promotion post for LDC's is that of Upper Division Clerk (UDC for short). The post of LDC is district wise post and the post of UDC is a State-wise post. In other words the unit for recruitment of LDCs is the district and the unit for recruitment of UDCs is State. A State-wise seniority list of LDCs is maintained for promotion to ilk post of UDCs. The appellants were recruited as LDCs in district 'X'. The contesting private respondents were recruited as LDCs in other district (was a district 'Y' or district 'Z') and were transferred on their 'own request' to disirici 'X'. The LDCs transferred on own request were permitted to join as LDC in district 'X' by taking the rank below the junior-most local LDCs in the district. On 7.11.1998 the State Government drew up a statewise seniority list of LDCs with reference to their date of first appointment to the service as LDCs for the purpose of effecting promotion to the next higher post (UDCs). The seniority of transferred LDCs were shown in the said list with reference to the date vi their first appointment as LDCs and not with reference to the dates of their joining-in the district to which they were transferred on their own request. Haying regard to the fact that they were recruited as LDCs prior to the local LDCs the transferred LDCs were placed above the local LDCs. If the seniority of transferred LDCs had been fixed with reference to the date of transfer to the district to which they were transferred, they would have been placed at bottom of the seniority list on the date of transfer and their position/rank would have been below that of local LDCs. After considering the representation received in respect of said provisional seniority list dated 7.l1.1984 the lnspctor General of Registration, Kerala (I.G. Registration for short) by memorandum dated 6.4.1987 finalised the state-wise seniority list of LDCs on 1.11.1983. On the basis of said seniority list of LDCs a provisional seniority list of UDCs as on 22.2.1986 was also prepared vide General Memorandum dated 9.12.1987. The said seniority list of LDCs as also the provisional seniority list of UDCs were challenged before the High Court. High Court by order dated 8.5.1990 disposed of the said petition by directing the I.G. Registration to consider the representation given by petitioners for re-fixing his seniority. Thereafter the Inspector General of I.G. Registration issued a revised provisional seniority list of LDCs dated 13.11.1990. In the said seniority list the position of transferred LDCs were shown with the reference to the date of their joining in their new district by excluding the services rendered till then in their old district. The transferred LDCs objected to the said change. The objection were rejected by I.G. Registration and the provisional list dated 13.11.1990 and the order I.G. Registration rejecting the objections were challenged by contesting private respondents and other similarly placed transferred LDCs. Learned Single Judge of High Court disposed off the said writ petition by Order dated 24.3.1997 holding that the transferred LDCs were not entitled to seniority with reference to initial date of appointment as LDCs and their seniority on the post of LDCs has to be reckoned only from the date of their joining in the new district to which they were transferred on own request having regard to the fact that recruitment of LDCs was district-wise and not State-wise. The order of learned Single Judge was challenged by transferred LDCs. The State resisted the appeal by relying on G.O. Dated 2.1.1961 and Rule-27 of Kerala State and Sub-ordinate .Service Rules 1958 (the Rules for short) to contend that the transferred LDCs had to be treated as junior-most in the new district and list dated 22.9.97 was finalised by applying the said Rules. The Division Bench held that having regard to the G.O. Dated 2.1.1961 and Rule 27 the seniority of transferred LDCs will have to be reckoned only from the date of their joining at the district to which they were transferred on their own request, it however felt that seniority list finalised in the year 1984 and the position of transferred LDCs should not be disturbed and further held that G.O. Dated 2.1.1961 and the proviso of Rule 27(a) should be given effect prospectively. The order of Division Bench was challenged by the appellants who were local LDCs before Hon'ble Apex Court. While interpreting the aforesaid Government Order and Rule 27(a) of the Rules, Hon'ble Apex Court held that a person transferred to a new unit will take rank below the junior-most in the category in the new unit or department, the transferred LDCs will not be allowed to count previous service towards seniority.
55. From close analysis of observations made by Hon'ble Apex Court in the aforesaid case, it is quite clear that the aforesaid decision has been rendered by Hon'ble Apex Court in total different, factual and statutory context and backdrop of the case. The Government order and provisions of Rule seeking transfer from one district to another district in the district-wise cadre of LDCs on own request expressly provided the consequence that the transferee in another district would be placed as junior-most LDC in said district and his seniority shall be counted with reference to the date of joining of his duties in the district to which he has been transferred, whereas in the instant case, no such statutory rule or office order or circular exist where the services of deputationists rendered in parent organization can be excluded. In aforesaid case neither any question of absorption of deputationists was involved nor the deputation/transfer was provided as source of recruitment as available in the case in hand, therefore, in our opinion, the decision rendered by Hon'ble Apex Court in aforesaid case can be of no assistance to the case of petitioners as the same is quite distinguishable.
56. In Surendra Singh Gaur v. State of M.P. and Ors. , the appellant was appointed on 18.10.1967 on the post of Assistant Agriculture Engineer in the Department of Agriculture in the State of Madhya Pradesh. He on his own volition on 2.7.1975 requested to be transferred and absorbed in the Department of Irrigation. The Irrigation Department on 27.1.1981 accepted the request of appellant for transfer and consequently he was permanently absorbed on the post of Assistant Engineer (Civil) in Irrigation Department from the date of taking over charge. Meanwhile the Department of Agriculture by order dated 16.7.1981 gave the appellant proforma promotion to the post of Agriculture Engineer in Agriculture Service Class (I). The appellant made representation to Irrigation Department regarding ex post facto merger (absorption) on the post of Executive Engineer. In response to which he was informed that his ex post facto absorption on the pay scale of Class I post of Executive Engineer is difficult in Irrigation Department but if he wants to go back to Agriculture Department and that department is also ready to take him back, this department has no objection. Irrigation Department gave the option to the appellant to go back to the Agriculture Department but the Agriculture Department refused to take him back because according to the Agriculture Department he had lost his lien in the Department and the Agriculture Department was not under any obligation to take the appellant back. Thereafter the appellant filed writ petition before High Court of Madhya Pradesh Indore Bench. The aforesaid writ petition was transferred to the Tribunal. The tribunal did not find any infirmity in the approach of the respondents. However, the tribunal observed that the appellant was given proforma promotion by the Agriculture Department vide order dated 16.7.1982 w.e.f. 29.8.1979, therefore, according to the established rules of service jurisprudence the Irrigation Department was under an obligation pay the difference of salary and allowances which the appellant had drawn m Agriculture Department as an Assistant Agriculture Engineer and the salary and allowances to which he became entitled to as a result of proforma promotion to the rank of Agriculture Engineer. The Agriculture Department was directed to re-fix his salary in the higher post w.e.f. 29.8.1970. After considering the facts and circumstances of the case, the Hon'ble' Apex Court has dismissed the appeal by upholding the order.jpassed by Administratee Tribunal.
57. From a close analysis of the aforesaid judgment it appears that the Hon'ble Apex Court has taken note of relevant portion of transfer order dated 27.1.1981, whereby the appellant was merged/absorbed from the date of taking over charge on the post of Assistant Engineer (Civil) in Irrigation Department and his seniority in the cadre of Assistant Engineer was liable be determined from the date of taking over the charge in the Irrigation Department. There is nothing to indicate that the appointment and' absorption of appellant was made in the Irrigation department on the post of Assistant Engineer under any rule providing the deputation/transfer as a source of recruitment and contrary thereto the appellant has joined the services of Irrigation Department on his own volition and request for such transfer as per terms and conditions of the transfer order itself. Thus, the facts of the aforesaid case is quite distinguishable from the facts of the instant case. Therefore, the law laid down by Hon'ble Apex Court in the aforesaid case can be of no assistance to the case of petitioners.
58. In Arun Kumar and Ors. v. Union of India and Ors. 2007 A.I.R. SCW 2472. The facts of the aforesaid case were that Sri Arvind Singh Barar I.P.S. was killed by terrorists while he was serving in the Punjab Police Service. On account of aforesaid incident his sister Ms. Amrit Barar respondent No. 4 was appointed on 9.6.1989 as Assistant Commandant in C.R.P.F. on probation for two years. She completed her probation on completion of two years. On 16/17.8.1993 Ms. Amrit Barar was appointed on deputation to the post of Deputy Superintendent of Police in Punjab Puke Service. She retained her lien as Assistant Commandant in C.R.P.F. till 11.9.1998 when she was absorbed as DSP in Punjab Police Force. She was allowed all benefits including pay and seniority from 9.6.1989. In between Ms. Amrit Barar was promoted to the post of Deputy Commandant in C.R.P.F. in March 1995. Appellants before the Hon'ble Apex Court were officers of Punjab Police Service. They have challenged the order of State Government in Punjab & Haryana High Court granting absorption to Ms. Amrit Barar particularly on the ground that Punjab Police' Service Rules did not contemplate absorption of a deputationist from C.R.P.F. The appellant challenged the absorption on the grounds that Ms. Amrit Barar was granted benefit of compassionate appointment as Assistant Commandant in C.R.P.F. in 1989 and therefore, she was not entitled to double benefit of compassionate absorption in 1998 and that too from 9.6.1989. The appellants' main grievance before the High Court was that giving the benefit of seniority to Ms. Amrit Barar from 9.6.1989 would make her senior to almost 10 officers. Consequently, she would supercede the appellants. By impugned judgment and order dated 24.1.2006 High Court dismissed the writ petition filed In appellants. According to the appellants under-Rules of Recruitment there were only two sources of recruitment, 80% is by promotion and 207% by direct recruitment. After going through the Rules of Recruitment i.e. Service Rules of the year 1959 the Hon'ble Apex Court has held that deputation is not the source the Recruitment under the said Rules. Direct recruitment and promotion are |(r)0lirces of recruitment. There is no such other source of recruitment by way of deputation. The Hon'ble Apex Court has further drawn the distinction from the K. Madhavan's case where the weightage has been given to the service put in transferee holding that in all those cases the third source of recruitment was transfer/deputation. In present case there is no such rule to that extent. However, the Hon'ble Apex Court has held that since Ms. Amrit Barar has put in 5 years experience as Deputy Superintendent in Punjab Police Servise between 16/17.8.1993 and 11.9.1998 while as on deputationist, the experience would be given weightage and ultimately held that she is entitled to the weightage for service rendered by her during these 5 years. However, she is entitled to weightage of service between 9.6.1989 to 16/17.8.1993 for the fixation of inter se seniority. Thus, in view of facts and circumstances of the s, we find that the facts of the instant case are clearly distinguishable from facts of the Arun Kumar's case. In that case deputation is not source of recruitment, whereas in instant case, deputation is one of the source of recruitment, therefore, law laid down by Hon'ble Apex Court shall not apply to the instant case.
59. In view of foregoing discussions and from a survey of case laws cited why learned Counsel for the parties, we find that there are two lines of cases, decided by Hon'ble Apex Court on the question in issue. In certain cases to which we will say, first line of cases, the deputation or transfer was provided as one of the source of recruitment amongst the sources of recruitment under statutes or executive orders governing the recruitments on particular post. The case of K. Madhavan (supra) is leading of the aforesaid category, wherein it been held by Hon'ble Apex Court that general principle that in absence of any specific provision to the contrary the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. In such eventuality deputation may be regarded as transfer from one Government department to another. Indeed, when a deputationist is permanently absorbed in the service, he is under rule appointed on transfer. On such a transfer the Government servant shall not lose his past services rendered in his parent department, in other words, the transfer cannot wipe out his length of service in the post from which he has been so transferred. The view taken by the Hon'ble Apex Court in aforesaid case has been consistently followed. explained and crystallized in the subsequent cases decided by Hon'ble Apex Court. In K. Anjaia's case (supra) while dealing with the relevant rule the Apex Court has categorically held that while determining the inter se seniority of the deputationists in new cadre after they are finally absorbed, their past services rendered in their parent department or organisation have to be taken into account. The aforesaid proposition has been further explained in M. Ramchandran's case (supra) holding that length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class category or grade is relevant consideration for the purpose of counting die period with respect to length of service for the purpose of determining the seniority, in other words, the period of holding of equlvalent post in the parent department would be relevant period to be taken note of for the purpose of determining the seniority. The expression 'equivalent post' has been subsequently explained by Hon'ble Apex Court in Sub Inspector Roop Lal's case (supra) by taking aid of decision rendered by Hon'ble Apex Court earlier in P.K. Roy's case (supra) AIR 1968 SC 850 wherein the Hon'ble Apex Court has explained the true import of expression 'equivalent post'. In Sub Inspector Rpop Lal's case (supra) the Apex Court went on further holding that any rule, regulation or executive instruction which has the effect of taking away the services rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would iv violative of Articles 14 and 16 of the Constitution hence liable to be struck down, consequently, the right of appellants of the aforesaid case to count then services from the date of their regular appointment in the post of Sub Inspector in B.S.F. while computing their service in the cadre of Sub Inspect (Executive) in Delhi Police was restored. Thus, in view of the aforesaid discussion, it follows that the services rendered by deputationists in parent department or organisation on equivalent post in regular and substantive capacity before joining their post on deputation with another department or organisation shall be counted and computed towards length of their service for determination of their seniority on deputed post. It is needless to say that the regular or substantive services rendered by them before their absorption . n deputed post shall also be counted for the purpose of their seniority on deputed post on their absorption on said post.
60. On other hand, there is another line of cases, where the deputation or transfer was not provided as one of the source of recruitment amongst the sources of recruitment either under the statutes or executive orders governing the recruitment on particular post but the appointment by deputation is otherwise permissible under law, with certain terms and conditions imposed therewith either under the statute or executive orders or office-memo's by whatever names called, to such cases, we will say second line of cases. The case of V.N. Bhat (supra), Indu Shekhar Singh (supra), K.P. Sudhakaran (supra), Surendra Singh Gaur (supra) and Arun Kumar's case (supra) are amongst the second line of cases. In respect of second line of cases, the Hon'ble Apex Court has held that the deputationists on absorption m another organization shall not be entitled to reckon their past services rendered on respective category of post in their parent department or organization prior to joining their posts on deputation. In some of these cases their seniority was counted from the date of joining on deputation and deputationists were treated to be junior most in service on respective category of post and in some cases seniority was fixed from the date of permanent absorption of deputations on deputed post and the permanent absorption of the deputationists was treated to be fresh appointment on deputed post without counting their past service rendered in their parent department or organization. However, in some of cases the deputationists have been given some other benefits of their past service but not for the purpose of determination of .seniority but all these consequences are solely dependent upon the terms and conditions of deputation/transfer or absorption of deputationists, which is either governed in statutory rules of particular service or in absence thereof by executive order or office memo's of the department but no strait jacket formula for universal application in second category of cases can be evolved and each case can he examined independently on its own facts and statutory backdrop of that case. Therefore, in our considered opinion, the submission of learned Counsel for ilk- petitioners that services of deputationists should invariably without having regard to the statutory backdrop of the case be counted from the date of their permanent absorption for the purpose of determination of seniority under Regulation 24(2) of Service Regulation 1981 appears to be without any legal basis and wholly misplaced, hence has to be rejected.
61. At this juncture before parting with the issue, we would like to point out that there is fundamental difference between the expression 'deputation/transfer' provided as one of the source of recruitment amongst ilk sources of recruitment under the rules of recruitment for particular post and the 'deputation or transfer' of Government servant from one department/organization to another department/organization under any residuary power of the State Government. In later category of cases, the 'deputation or transfer' is permissible under service rule or executive orders with certain terms and conditions. In former category of cases the intention of rule making Authority or employer is obvious that a service cadre is intended to be constituted by drawing efficient and personnel of excellence from different services with better service benefits and protection of their past services, in the better public interest, whereas contrary to it. in later cases where the 'deputation/transfer' is permissible under law in the interest of Government or public servant, in such situation, it seems that the Government or public servant are subjected to those conditions under which, it is possible that Government or public servant seeking his transfer on deputation from one department to another department or one organization to another organization may, lose his seniority after going on, deputation. Thus, in our considered opinion, both the categories of deputation/transfer in the service jurisprudence are fundamentally different from each other and one cannot be confused with another. This is also one of the reason in our considered opinion that Hon'ble Apex Court in the first line of cases protected the past regular services of deputationists rendered in their parent department/organization on then absorption on deputed post, whereas contrary to it, while dealing with the second line of cases referred herein before did not permit to be counted the past services of deputationists for the purposes of seniority after then absorption on deputed post.
62. 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 post department or organisation in respective categories or posts or grades before joining the post on deputation in the services of the Authoriu 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 m an >equivalent post in parent department while counting their services m deputed post would be violative of Articles 14 and 16 of the Constitution of India, Juice 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.
63. 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 o1 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.1 Vide order dated 27.8.2004 his services have been absorbed permanently in his 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 n 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 m 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.
64. As we have already held that past services of deputatiomsts-respondent 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 pf the Authority contained in C.A.-l 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 dated1 2.6.2006 earlier drawn by respondent No. 2 of the writ petition has been I 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 him 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.
65. 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 their writ petitions are devoid of merit and are liable to be dismissed. Thus, we dismiss both the writ petitions.
66. There shall be no order as to costs. Parties shall bear their own costs.