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CASE NO.: Appeal (civil)  6960 of 2005

PETITIONER: Indu Shekhar Singh & Ors.

RESPONDENT: State of U.P. & Ors.

DATE OF JUDGMENT: 28/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T With Civil Appeal No.6961 of 2005

S.B. SINHA, J :

These appeals arising out of a judgment and order of the Allahabad  High Court dated 4.4.2003 were taken up for hearing together and are being  disposed of by this common judgment.                  The Respondent No.2- Mani Kant Gupta, Respondent No.3-Virendra  Kumar Tyagi and Respondent No.4-Sukhpal Singh and the intervener herein  (now Respondent No.6-Vijay Kumar) were appointed in U.P. Jal Nigam on  5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively.  Several  town planning authorities including Ghaziabad Development Authority were  created by Uttar Pradesh Urban Planning and Development Act, 1973 (’the  Act’, for short) with a view to provide for development of certain areas of  State of Uttar Pradesh according to the plans and for other matters incidental  thereto.  Section 4 of the Act empowers the State Government to issue a  notification constituting a development authority for any development area.  In exercise of the said power, the State of U.P. constituted various  development authorities, including the Ghaziabad Development Authority.   By reason of U.P. Act No.21 of 1985, the State of U.P. inserted Section 5-A  in the said Act to create centralized services of all the development  authorities, sub-sections 1 and 2 whereof read as under:

"5-A (1)       Notwithstanding anything to the contrary  contained in Section 5 or in any other law for the time  being in force, the State Government may at any time, by  notification, create one or more ’Development  Authorities Centralized Services’ for such posts, other  than the posts mentioned in sub-section (4) of Section 59,  as the State Government may deem fit, common to all the  development Authorities, and may prescribe the manner  and conditions of recruitment to, and the terms and  conditions of service of persons appointed to such  service.

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

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

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(b)     provisionally, if he was holding temporary  or officiating appointment."   The said provision came into force with retrospective effect from  22.10.84.

Uttar Pradesh Development Authority Centralised Services Rules  were notified by the Government of Uttar Pradesh on 25th June, 1985 (the  ’1985 Rules’, for short), some of the relevant provisions whereof would be  noticed by us hereinafter.    

The Respondent Nos.2, 3, 4 and 6 (the intervener) were deputed to  Ghaziabad Development Authority on diverse dates, i.e., 26.6.1986,  6.5.1989, 16.10.1985 and 1.4.1984 respectively.   

U.P. Jal Nigam, admittedly, is not and has never been a development  authority.  The employees on deputation to the development authorities from  U.P. Jal Nigam, therefore, could not have been absorbed in the centralized  services in terms of Sub-section (2) of Section 5-A of the Act.  Options  were, however, called for from the officers of U.P. Jal Nigam on deputation  on various dates by the State of U.P.

By letter 27.8.1987 and 28.11.1991, they were asked to communicate  their acceptance stating as to whether they would like to be absorbed in the  authorized centralized service subject to the conditions specified therein,  e.g., their past services rendered in U.P. Jal Nigam would not be reckoned  for the purpose of determination of seniority and they would be placed  below the officers who had been appointed on regular basis in centralized  service after their absorption.  A copy of the Office order dated 3rd February,  1997 by way of example may be noticed:

"GOVERNMENT OF UTTAR PRADESH HOUSING SECTION-5

No.338/9 Housing-5-97-2628/96 Lucknow dated 03 February, 1997

OFFICE ORDER

       For fixation of seniority of Shri Sushil Chandra  Dwivedi, Assistant Engineer in Authority Centralised  Services, the Government Order No.416912/9Aa-5-91/94  dated 6.11.95 with respect to inclusion of service  rendered by him in State Planning Institute was not found  legal in view of Rule 7(1) of Authority Centralised  Services Rules.  Consequently, after consideration, the  said order dated 6.1.95 is hereby cancelled.

2.      As a result, in Authority Centralised Services on  the post of Assistant Engineer, in the Seniority list  declared vide Government Order No.1596/9 Aa-5-95- 1235/95 dated 12.4.96, the seniority of Shri Dwivedi is  ordered by the Governor to be fixed below Shri Anil  Kumar Goel shown at serial no.64 and in order of  seniority at serial no.6 above Shri Ramesh Kumar at  serial 64A in order of seniority.                                                         Illegible                                                 Chief Secretary"

The Respondents herein, admittedly, resigned from their services from  U.P. Jal Nigam.  The Respondent No.2 accepted the said offer of the State in  terms of his letter dated 27.8.1987 stating:

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"With regard to the conditions stated in your Office  memo referred to above on the aforementioned subject, I  submit as follows :

(a)     The applicant fully accepts the condition Nos.1,2,3,4  mentioned in your Office Memo, whereas with  respect to condition no.5, I submit that this condition  has already been complied with vide letter No.66/87  dated 2.5.87 of Vice Chairman, Ghaziabad  Development Authority.

(b)     With respect to condition No.2, I submit that the  applicant has been appointed on regular basis in U.P.  Jal Nigam on the post of Assistant Engineer (Civil) in  accordance with the rules and regulations in the year  1978 after qualifying in written examination and  interview etc.  Subsequently w.e.f. 1.4.84 my services  on the post of Assistant Engineer were made  permanent.  Photocopy of the Office memo is  enclosed for your perusal.  Therefore, presently the  applicant is appointed on permanent basis on the post  of Assistant Engineer in U.P. Jal Nigam.  Thereafter,  according to my knowledge, on the basis of  Government Orders which are at present in existence  my absorption in Authority Centralised Services  should be treated as regular selection from the date of  absorption.

Therefore, you are again requested that a decision in  this regard should be taken on a sympathetic  consideration.  Thereafter, whatever decision is taken  shall be acceptable to the applicant.

In accordance with the instructions contained in the  last paragraph of your above referred office memo, I am  enclosing my resignation addressed to the Managing  Director, U.P. Jal Nigam, Lucknow.  Kindly forward the  same to the Managing Director." No option, however, was given to Respondent Nos.3 and 6 (the  intervener).  They, however, presumably opted on their own for their  absorption in the authorized centralised services of the development  authorities.  It is not in dispute that the State issued letters of absorption, so  far as Respondent Nos.2 and 3 are concerned on 18.3.1994 and so far as  Respondent Nos. 4 and 6 (the intervener) are concerned on 6.4.1987.  The  Appellants herein were appointed in various development authorities the  details whereof are as under:  

S.No.             Name Date of  appointment 1. 2. 3. 4. 5. 6. 7. Indu Shekhar Singh Shivraj Singh S.N. Tripathi S.S. Verma P.C. Pandey Rakesh Kr. Shukla Ajay Kr. Singh

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14.2.83 14.5.82 24.7.79 27.6.84 12.10.84 15.5.82 24.4.82

       In view of Rule 7 of the Uttar Pradesh Development Authorities  Rules, 1985, the Appellants were placed above the Respondent Nos.2, 3, 4  and 6 in the seniority list.  Questioning the said orders, Respondent Nos. 2 to  4 herein filed a writ petition before the Allahabad High Court praying, inter  alia, for the following relief:           "i.     To issue a writ order or direction in the nature of  mandamus commanding the respondents to give benefit  of past service to the petitioners rendered by them in the  parent department and to treat the petitioners for  promotion or promote them when the juniors were  considered and promoted else they shall suffer  irreparable loss and injury."

By reason of the impugned order dated 4.4.2003, the said writ petition  has been allowed.  The High Court, relying on or on the basis of the decision  of this Court in Sub-Inspector Rooplal & Anr. vs. Lt. Governor through  Chief Secretary, Delhi & Ors. [(2000) 1 SCC 644], opined:   (1)     That refusal on the part of the State to grant benefit of past  service in U.P. Jal Nigam in favour of the Respondents is violative of  Articles 14 and 16 of the Constitution of India;

(2)     By reason of acceptance of offer to give up their past services,  the optees did not and could not have waived their fundamental right and,  thus, acceptance of the conditions for their absorption was not material; (3)     In view of the fact that similar benefits were granted by the  court in favour of S/Shri Brij Mohan Goel and Sushil Chandra Dwivedi, the  Respondents could not have been discriminated against.

Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf of  the Appellants in support of these appeals would submit:

I.(i)   That the plea of discrimination raised by the Respondents was  misconceived as the High Court overlooked the fact that no finality has been  attained in the cases of Brij Mohan Goel and Sushil Chandra Dwivedi and  the matters are still sub-judice;  

(ii)    So far as the case of Sushil Chandra Dwivedi is concerned, the  order impugned therein was quashed on the ground that the principles of  natural justice had not been complied with and thus, the same must be held  to be pending decision before the appropriate department;

(iii)   In the case of Shri D.C. Srivastava, the writ petition having  wrongly been dismissed as infructuous, this Court, by Judgment dated  24.3.2003 in Civil Appeal Nos.2403-04 of 2003, restored the writ petition  and remitted the matter back to the High Court;   (iv)    Rule 7 was amended by the State by an order dated 9.12.2002  whereby and whereunder the post of Assistant Engineer in Jal Nigam, an  autonomous body under the U.P. Water Sewarage Act, was held not to be  equivalent to the post of Assistant Engineer in the Development Authority  Centralized Service;  

(v)     S/Shri Brij Mohan Goel and Sushil Chandra Dwivedi being  already in the services of the Development Authority, were not required to  opt for Centralised Service in terms of Section 5-A of the Act and Rule 7 of  the Rules, whereas Jal Nigam being not a Development Authority and its

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services having not merged in the Centralised Service, Rule 7 could not have  been applied in the fact of the present case, as in fact Rule 28 would apply  hereto.

(vi)   An erroneous order cannot be made the basis for sustaining a  plea of discrimination.

       II.(i)  The Respondents did not have any fundamental right to be  deputed to any other autonomous organization or being absorbed  permanently and thus, the question as regard reckoning of their past services  for the purpose of seniority was a matter which was within the exclusive  domain of the State in respect whereof the High Court should not have  exercised its power of judicial review.   

       (iii)   Reckoning of past services was directed to be made by  this Court only in the cases: (a)     where Army Officers were recruited during  national emergencies and where such past services  were directed to be counted in terms of the Rules;

(b)     where recruitment had been made from multi  sources including that of deputation;  

(iii)   The said principles would not, thus, apply to the present case  having regard to the provisions of Section 5-A of the Act and in that view of  the matter, Articles 14 and 16 of the Constitution cannot be said to have any  application whatsoever;   

(iv)    Doctrine of Election would apply in the case of Respondents as  they had a choice to refuse absorption and ask for their reversion to the  parent department, but having not done so, they cannot now be allowed to  turn round and contend that they had been discriminated against; (v)     The Respondents having accepted conditional appointment as  far back in the year 1987 and 1994, could not have filed a writ petition in the  year 2000 which, thus, suffering from inordinate delay and latches, the writ  petition should have been dismissed.

(vi)    The Respondent Nos. 2 to 4, having not been absorbed in terms  of Section 5-A of the Act, the provisions of Rule 7 of the Rules, 1985 were  not attracted.

The learned counsel appearing on behalf of the State submitted that in  view of the notification dated 9.12.2002, the writ petition filed by the  Respondents has become infructuous and in this connection our attention  was drawn to paragraph 5 of its counter affidavit, which is to the following  effect:

"5.     That, it may further be stated that under the  provisions of the U.P. Development Authorities  Centralised Services Rules 1985 and the 11th Amendment  dated 9.12.2002 therein whereby Rule 7(1) of the said  Rules stood substituted, the past services of only those  officers/employees shall be counted towards seniority,  who are finally absorbed in the service under section 5- A(2) of the Act, on the criterion of continuous length of  service including the services rendered in a Development  Atuhority, Nagar Mahapalika, Nagar Palika,  Improvement Trust or in Government Department on  similar posts.  Respondent nos. 2 to 4 have not been  absorbed under Section 5-A(2) of the Act.  Hence, the  benefit of Rule 7(1) of the 1985 Rules is not available to  the said respondents."

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Mr. M.L. Verma, learned Senior Counsel appearing on behalf of the  Respondent Nos. 2 to 4, on the other hand, submitted:

(i)     That no ground of delay and latches having been raised by the  State and the Appellants who were not parties to the writ petition and hence,  they cannot be allowed to raise the said contention before this Court;

(ii)    It is not a case where the Respondent Nos. 2 to 4 had been  appointed through side door and having regard to the fact that the conditions  imposed for their absorption by the State were unfair and unreasonable, the  same would be violative of Article 14 of the Constitution of India and in that  view of the matter, the impugned judgment of the High Court is sustainable  in law;

(iii)   There being not much difference between deputation and  transfer, and the Respondents, being deputationists, must be regarded to  have been appointed on transfer from Jal Nigam and hence, could not be  denied an equivalent position in the transferee department, wherefor their  past services could not have been ignored;

(iv)    Length of service being the ordinary law for reckoning seniority  of the employees, the State of U.P. could not deny the benefits thereof to the  Respondents;

(v)     Even assuming that the Respondent Nos. 2 to 4 gave  concurrence to that effect that they would not be conferred the benefits of  the services rendered in Jal Nigam, for fixation of seniority they are at least  entitled to the seniority from the date of their deputation till the date of their  absorption as the decision on their offer could not have been taken after an  unreasonable period, which is itself violative of Article 14 of the  Constitution of India;

(vi) The State or for that matter the Authority, during the pendency of  the cases of the Respondents, could not have made ad-hoc appointments and  give seniority to those ad-hoc employees.    

(vii)   The High Court has rightly followed the cases and the decisions  passed in Sushil Chandra Dwivedi and Brij Mohan Goel as seniority had  been given to them, although they were appointed on work charge basis and  they have not only been promoted to the post of Executive Engineer, they  have also been promoted to the post of Superintending Engineer.

Sections 2(vi) and 2(vii) of the Act are :

"2(vi)     ’Member of the service’ means a person  absorbed against or appointed to a post in the cadre of the  service under these rules;

(vii)   ’Service’ means the Uttar Pradesh Development  Authorities Centralised Services created under the Act."  

Rule 7(1) of the U.P. Development Authorities Centralised Services  Rules, 1986 which has been amended by Amendment Rules, 2002 reads  thus:

Column-1 Existing Rule Column-1 Rule as hereby substituted 7(1) Notwithstanding anything  in rule 28 the seniority of such  officers and other employees  who are finally absorbed in the  service under Sub-section (2)

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of section 5-A of the Act shall  be determined on the criterion  of continuous length of service  including the services rendered  in a Development Authority,  Nagar Mahapalika, Nagar  Palika or Improvement Trust  on similar posts. 7(1) Notwithstanding anything  in rule 28 the seniority of such  officers and other employees  who are finally absorbed in the  service under Sub-section (2)  of section 5-A of the Act shall  be determined on the criterion  of continuous length of service  including the services rendered  in a Development Authority,  Nagar Mahapalika, Nagar  Palika or Improvement Trust or  in Government Department on  similar posts.  

Rule 28 of the Rules, 1985 reads:

"28.    Seniority.-     (1) Except as hereinafter provided, the  seniority of persons in any category of post, shall be  determined from the date of order of appointment and if  two or more persons are appointed together, by the order  in which their names are arranged in the appointment  order:

Provided that if more than one order or  appointment are issued in respect of any one  selection, the seniority shall be mentioned in the  combined order of appointment issued under Sub- rule (3) of Rule 25.

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

Provided that a candidate required directly  may lose his seniority if he fails to join without  valid reasons when vacancy is offered to him.  The  decision of the appointing authority as to the  validity of reasons shall be final.

(3)     The seniority inter se of persons appointed by  promotion shall be the same as it was in the cadre from  which they were promoted.

(4)     Notwithstanding anything in Sub-rule (1) the inter  se seniority of persons appointed by direct recruitment  and by promotion shall be determined from the date of  joining the service in the case of direct recruits and from  the date of continuous officiation in the case of  promotees and where the date of continuous officiation  of promotee and the date of joining of the direct recruit is  the same, the person appointed by promotion shall be  treated as senior:

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

Rule 37 of the Rules states:

"37.   Regulation of other matters.- (1) If any dispute  of difficulty arises regarding interpretation of any of the  provisions of these rules, the same shall be referred to the  government whose decision shall be final.

(2) In regard to the matters not covered by these  rules or by special orders, the members of service shall  be governed by the rules, regulations and orders  applicable generally to U.P. Government servants serving  in connection with the affairs of the State.

(3) Matters not covered by Sub-rules (1) and (2)  above shall be governed by such orders as the  Government may deem proper to issue."

Part III of the Rules, 1985 deals with Suitability or Provisionally  Absorbed Persons, Part VII deals with Appointment, Probation,  Confirmation and Seniority.  Rule 25 provides for appointment by the  Authority in terms of the selection process, which has been specified in Part  V of the said Rules.  Part-IV deals with recruitment.            

The terms and conditions of recruitment/appointment to the post,  seniority and other terms and conditions of service are governed by statutory  rules.  The statute provides that only those, who were in the employment of  the different Development Authorities, shall be borne to the cadre of the  Central Services.  The U.P. Jal Nigam was not a Development Authority.  It  was constituted under a different statute.  It was an autonomous body.  The  employees working with Jal Nigam might have been deputed to the services  of the Development Authorities, but only by reason thereof they did not  derive any right to be absorbed in the services.  Ordinarily, an employee has  no legal right to be deputed to another organization.  He has also no right to  be permanently absorbed excepting in certain situation as was held by this  Court in U.O.I. thr. Govt. of Pondicherry & Anr. vs. V. Ramkrishnan &  Ors. [(2005) 8 SCC 394].

The Respondent Nos. 2 to 4 were deputed to the Ghaziabad  Development Authority on their own.  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.  Appointment by way of  absorption of a deputed employee would amount to fresh appointment which  may be subject to the offer given by the Authority.  The Development  Authority is a statutory authority.  So is the Jal Nigam.  The Schedules  appended to the Rules provide for posts to be filled up by promotion or by  direct recruitment or by both.   Schedule IV provides for the posts which  were outside the purview of the Public Service Commission and are required  to be filled up by promotion only, whereas Schedule V specifies those posts  outside the purview of the Public Service Commission, but were to be filled  up through direct recruitment only.  It is not disputed that the State of U.P.  has since issued a notification on 9.12.2002 whereby and whereunder Rule  7(1) of the Rules, 1985 stood substituted, in terms whereof the past services  of only those officers and employees were to be counted who would finally  be absorbed in the services in terms of Section 5-A(2) of the Act on the  criteria of continuous length of service, including the service rendered in

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Development Authority, Nagar Mahapalika, Nagar Palika or Improvement  Trust on similar posts.  The Respondent Nos. 2 to 4 were not and could not  have been absorbed under Section 5-A(2) of the Act and thus evidently Rule  7(1) is not attracted.  The only Rule, which provides for seniority, is Rule  28.  Rules 7 and 28, as noticed hereinbefore, occur in different Chapters  providing for different situations.   

The Respondent Nos.2 to 4, therefore were not entitled to the benefits  of Rule 7.  In terms of the rules, there is no provision for appointment by  way of transfer.  There is also no provision for appointment on permanent  absorption of the deputed employees.  The only provision which in the fact  situation obtaining in the present case would apply and that too in the event  the State intended to absorb the employees of Jal Nigam, would be Section  7(1) of the Act and Sub-Rule (2) of Rule 37 of Rules, 1985    

Seniority, as is well settled, is not a fundamental right.  It is merely a  civil right. [See Bimlesh Tanwar vs. State of Haryana (2003) 5 SCC 604,  paragraph 49 and also Prafulla Kumar Das & Ors. vs. State of Orissa &  Ors.(2003) 11 SCC 614.]     

The High Court evidently proceeded on the premise that seniority is a  fundamental right and thereby, in our opinion, committed a manifest error.   

The question which arises is as to whether the terms and  conditions  imposed by the State in the matter of absorption of Respondent Nos. 2 to 4  in the permanent service of Ghaziabad Development Authority is ultra vires  Article 14 of the Constitution of India.

The State was making an offer to the Respondents not in terms of any  specific power under Rules, but in exercise of its residuary power (assuming  that the same was available).  The State, therefore, was within its right to  impose conditions.  The Respondents exercised their right of election.  They  could have accepted the said offer or rejected the same.  While making the  said offer, the State categorically stated that for the purpose of fixation of  seniority, they would not be obtaining the benefits of services rendered in  U.P. Jal Nigam and would be placed below in the cadre till the date of  absorption.  The submission of Mr. Verma that for the period they were with  the Authority by way of deputation, should have been considered towards  seniority cannot be accepted simply for the reason that till they were  absorbed, they continued to be in the employment of the Jal Nigam.   Furthermore, the said condition imposed is backed by another condition that  the deputed employee who is seeking for absorption shall be placed below  the officers appointed in the cadre till the date of absorption.  The  Respondent Nos.2 to 4 accepted the said offer without any demur on 3.9.87,  28.11.91 and 6.4.87 respectively.    

They, therefore, exercised their right of option.  Once they obtained  entry on the basis of election, they cannot be allowed to turn round and  contend that the conditions are illegal.  [See R.N. Gosain vs. Yashpal Dhir  (1992) 4 SCC 683,  Ramankutty Guptan vs. Avara (1994) 2 SCC 642 and  Bank of India & Ors. vs. O.P. Swarnakar & Ors. (2003) 2 SCC 721.]   Further more, there is no fundamental right in regard to the counting of the  services rendered in an autonomous body.  The past services can be taken  into consideration only when the Rules permit the same or where a special  situation exists, which would entitle the employee to obtain such benefit of  past service.   

We may now look into some decisions of this Court.

In Ram Janam Singh vs. State of U.P. & Anr. (1994) 2 SCC 622,  this Court held:

"\005\005\005It is now almost settled that seniority of an  officer in service is determined with reference to the date  of his entry in the service which will be consistent with

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the requirement of Articles 14 and 16 of the Constitution.   Of course, if the circumstances so require a group of  persons, can be treated a class separate from the rest for  any preferential or beneficial treatment while fixing their  seniority.  But, whether such group of persons belong to  a special class for any special treatment in matters of  seniority has to be decided on objective consideration  and on taking into account relevant factors which can  stand the test of Articles 14 and 16 of the Constitution.   Normally, such classification should be by statutory rule  or rules framed under Article 309 of the Constitution.   The far-reaching implication of such rules need not be  impressed because they purport to affect the seniority of  persons who are already in service.  For promotional  posts, generally the rule regarding merit and ability or  seniority-cum-merit is followed in most of the services.   As such the seniority of an employee in the later case is  material and relevant to further his career which can be  affected by factors, which can be held to be reasonable  and rational."

The Constitution Bench decision of this Court in Prafulla Kumar  Das & Ors. (supra), whereupon Mr. Verma placed reliance, does not lay  down any universal rule that length of actual service is the determining  factor in the matter of promotion and consequential  seniority.  In Roshan  Lal Tandon vs. Union of India [AIR 1967 SC 1889], this Court was  concerned with inter se seniority of the employees drawn from two different  sources in different situations.   

Such is not the position here.  The Appellants herein are borne in the  cadre of the Centralized Services by reason of provision of a statute.  The  statute provides for constitution of the Centralized Services.  The State  Government has framed Rules, which having validly been made would be  deemed to be a part of the statute.   

Absorption of the deputationists, on the other hand, would depend  upon an arrangement, which may be made by the State being not a part of  the statutory Rule.  They would, thus, be borne in the cadre in terms of the  directions of the State in exercise of its residuary power.   

In Ram Janam Singh (supra), this Court laid a distinction between  those who were in the services of Army during emergency and who had  joined Army after the emergency.  It was held that those who have served  the country during emergency formed a class by themselves and if such  persons have been treated as a separate class for obtaining benefit in the  matter of seniority, no grievance could be raised on the ground that such  classification would be upheld on the touchstone of Articles 14 and 16 of the  Constitution of India.  Those employees who joined Army after emergency  cannot claim extension of such benefits as a matter of right.   

In R.S. Makashi & Ors. vs. I.M. Menon & Ors. [(1982) 1 SCC  379], this Court was considering a case where the staff of a new department  had been drawn from four different sources.   

Thus, in a case where employees were drawn from different sources,  although as part of single scheme, which was considered to be a special  situation, was formulated in that behalf, this Court opined:

"When personnel drawn from different sources are  being absorbed and integrated in a new department, it is  primarily for the government or the executive authority  concerned to decide as a matter of policy how the  equation of posts should be effected.  The courts will not  interfere with such a decision unless it is shown to be  arbitrary, unreasonable or unfair, and if no manifest

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unfairness or unreasonableness is made out, the court will  not sit in appeal and examine the propriety or wisdom of  the principle of equation of posts adopted by the  Government.  In the instant case, we have already  indicated our opinion that in equating the post of Supply  Inspector in the CFD with that of Clerk with two years’  regular service in other government departments, no  arbitrary or unreasonable treatment was involved."

Despite the fact that the Court held that a rule whereby full benefits  having been given and two years’ period had been reduced is not ultra vires  it was stated:  

"The reasons stated by the learned Single Judge of  the High Court for declaring the aforesaid rule to be  arbitrary and violative of Article 16 of the Constitution  do not appeal to us as correct or sound.  Almost the entire  reasoning of the learned Single Judge is based on an  assumption that there is an invariable "normal rule" that  seniority should be determined only on the basis of the  respective dates of appointment to the post and that any  departure from the said rule will be prima facie  unreasonable and illegal.  The said assumption is devoid  of any legal sanction.  We are unable to recognize the  existence of any such rigid or inflexible rule.  It is open  to the rule-making authority to take a note of the relevant  circumstances obtaining in relation to each department  and determine with objectivity and fairness what rules  should govern the inter se seniority and ranking of the  personnel working in the concerned departments and the  courts will only insist that the rules so formulated should  be reasonable, just and equitable.  Judged by the said test  of reasonableness and fairness, the action taken by the  Government in equating the clerical personnel which had  rendered two years’ regular service in other departments  with the temporary Supply Inspectors of the CFD and in  directing as per impugned Rule 4(a) that their inter se  seniority shall be determined with reference to the length  of service calculated on the basis of the said equation  cannot be said to be in any way discriminatory or illegal.   We are unable to accept as correct the view expressed by  the learned single Judge of the High Court that "while   fixing the seniority in the higher post, it is not open to  take into consideration any service rendered in the lower  post and that by itself spells out discrimination."  Firstly,  it is not correct to regard the post of a regular Clerk in the  other departments as lower in grade in relation to that of  a Supply Inspector in the CFD. Further, in S.G.  Jaisinghani v. Union of India, this Court has pointed out  that in the case of recruitment to a service from two  different sources and the adjustment of seniority between  them a preferential treatment of one source in relation to  the other can legitimately be sustained on the basis of a  valid classification, if the difference between the two  sources has a reasonable relation to the nature of the  posts to which the recruitment is made.  In that case, this  Court upheld the provision contained in the seniority  rules of the Income Tax Service, whereby a weightage  was given to the promotees by providing that three years  of outstanding work in Class II will be treated as  equivalent to two years of probation in Class I (Grade II)  Service.   "

In Wing Commander J. Kumar vs. Union of India & Ors. [(1982)

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2 SCC 116, this Court negatived the contention that any employee had  acquired vested right to have his seniority reckoned with reference to the  date of his permanent secondment and to all officers joining the organisation  on subsequent dates ranked only below him.  The question, which fell  therein for consideration was as to whether the principle enunciated in Rule  16 can be said to be unreasonable or arbitrary.  The Court took into  consideration the factual aspect of the matter and held that it will not be  reasonable, just or fair to determine the seniority of the permanently  seconded service personnel merely on the basis of the date of their  secondment to the Organization.   

In that case also Officers from three services holding different ranks  were inducted into the R & D Organisation.  Unreasonable consequence that  flowed from the acceptance of the arguments of the Appellant therein were  considered opining:

"\005 When due regard is had to all the aspects and  circumstances, narrated above, it will be seen that the  principle adopted under the impugned rule of reckoning  seniority with reference to a date of attainment of the  rank of substantive Major/equivalent strikes a reasonable  mean as it ensures to all the service officers in the R & D  the fixation of seniority in the integrated cadre giving full  credit to the length of service put in by them in their  respective parent services."

In K. Madhavan & Anr. vs. Union of India & Ors. [(1987) 4 SCC  566], whereupon Mr. Verma placed strong reliance, this Court was  considering a case where deputation was made to CBI.  The said decision  was rendered in a situation wherein the original Rule 5 of 1963 Rules  providing for 85% of the recruitment by way of transfer or deputation was  altered to 75%.  In that case, the earlier services rendered by the Appellants  therein were directed to be considered having regard to the statutory rules  governing the field.  Therein no question of a person joining the services  after resigning from his old post arose.  It is only in that situation, the Court  opined that there was not much difference between deputation and transfer.     

A difference between transfer and deputation would be immaterial  where an appointment by transfer is permissible, particularly in an  organization like CBI where personnel are drawn from different sources by  way of deputation.  It is one thing to say that a deputationist may be  regarded as having been appointed on transfer when the deputation is from  one department of the Government to another department, but it would be  another thing to say that employees are recruited by different Statutory  Authorities in terms of different statutory rules. In a given case, the source of  recruitment, the qualification, etc., may be different in different  organizations.  The Statutory Authorities, it is trite, are not and cannot be  treated to be the departments of the Government.  Their employees are  governed by the rules applicable to them.  Their services are not protected  under Article 311 of the Constitution.   

The State can compel an employee to go on deputation from its parent  department to another Public Sector Undertaking unless a statutory rule  exists in this behalf.  In absence of such a rule, no employer can force an  employee to join the services of another employer.  Thus, K. Madhavan   (supra), in our opinion, has no application in the instant case.   

K. Anjaiah & Ors. vs. K. Chandraiah & Ors. [(1998) 3 SCC 218  was again a case where this Court was concerned with multi source  recruitment.  In that case construction of Regulation 9 came under  consideration, which is to the following effect:

"9. (1) The persons drawn from other departments will  carry on their service and they will be treated as on other

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duty for a tenure period to be specified by the  Commission or until they are permanently absorbed in  the Commission whichever is earlier.       (2) The services of those staff members working in  the Commission on deputation basis and who opted for  their absorption in the Commission, shall be appointed  regularly as the staff in the Commission, in the cadre to  which they belong, as per the orders of Government  approving their appointments batch by batch and to  determine the seniority accordingly. For this purpose the  Commission may review the promotions already  affected."

Therein, thus, existed a provision for appointment by way of  absorption of the deputationist.  The said Regulation was declared  unconstitutional by the Tribunal.  This Court, however, having regard to the  fact situation obtaining therein, thought it fit to uphold the Regulations  stating:

"\005..that the phraseology used in Regulation 9(2) is no  doubt 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."

Such a finding was, thus, arrived at by way of reading down the Rules  so as to uphold the constitutionality of the said provision and not by laying  any law in that behalf upon interpreting Rule 9(2).   

Having noticed the afore-mentioned decisions of this Court, we may  now notice Sub-Inspector Rooplal & Anr. (supra), which is the sheet  anchor of the judgment rendered by the High Court.  In that case, this Court  was concerned with interpretation of Rule 5(h) of the Delhi Police  (Appointment and Recruitment) Rules, 1980 providing that if the  Commissioner is of the opinion that it is necessary or expedient in the  interest of work so to do, he may make appointment(s) to all non-gazetted  categories of both executive and ministerial cadres of the Delhi Police on  deputation basis and by drawing suitable persons from any other State,  Union Territory, Central police organization or any other force.  The  Appellants therein were deputed on transfer from BSF to the Delhi Police  pursuant to the aforementioned provisions.  Rule 5(h) of the said rules  empowered the Authority to appoint the employees of other departments  drawn by way of deputation depending upon the need of the Delhi Police.   There was no seniority rule.  Seniority in that case was sought to be  determined by way of an executive order, which in turn was issued on the  basis of a Memorandum dated 29.5.1986 issued by the Government of India.   The Memorandum in question was neither made public nor the existence  thereof was made known to any person involved in the controversy.  The  said Memorandum was not made ipso facto applicable to the employees.  In  the aforementioned factual backdrop referring to R.S. Makashi & Ors.  (supra) and Wing Commander J. Kumar (supra),  this Court observed:         

"\005\005.Therefore, it is reasonable to expect that a  deputationist, when his service is sought to be absorbed in

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the transferred department would certainly have expected  that his seniority in the parent department would be  counted. In such a situation, it was really the duty of the  respondents, if at all the conditions stipulated in the  impugned memorandum were applicable to such person, to  have made the conditions in the memorandum known to  the deputationist before absorbing his services, in all  fairness, so that such a deputationist would have had the  option of accepting the permanent absorption in the Delhi  Police or not."                          

 In that case a Coordinate Bench of the Tribunal had opined that those  personnel who were drawn from other departments were entitled to get their  past services counted for the purpose of seniority.  The said decision attained  finality.  In the case of the Appellant herein, the benefit of the said judgment  was not extended and the question was sought to be reopened stating that the  post of Sub-Inspector in BSF was not equal to the post of Sub-Inspector in  the Delhi Police.  The relevant part of the Memorandum issued on  29.5.1986, which was relied upon, reads thus:

"Even in the type of cases mentioned above, that  is, where an officer initially comes on deputation and is  subsequently absorbed, the normal principles that the  seniority should be counted from the date of such  absorption, should mainly apply. Where, however, the  officer has already been holding on the date of absorption  in the same or equivalent grade on regular basis in his  parent department, it would be equitable and appropriate  that such regular service in the grade should also be taken  into account in determining his seniority subject only to  the condition that at the most it would be only from the  date of deputation to the grade in which absorption is  being made. It has also to be ensured that the fixation of  seniority of a transferee in accordance with the above  principle will not effect any regular promotions made  prior to the date of absorption. Accordingly it has been  decided to add the following sub-para (iv) to para 7 of  general principles communicated vide OM dated 22-12- 1959:  ’(iv) In the case of a person who is initially taken  on deputation and absorbed later (i.e. where the  relevant recruitment rules provide for "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 so ever been  holding already (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\027 \027 the date he has been holding the post on  deputation, or \027 the date from which he has been appointed  on a regular basis to the same or equivalent  grade in his parent department, whichever is  later.’ "                    

The interpretation of clause (iv) and in particular, the words  "whichever is later" came up for consideration in the said decision and on  interpretation of the Rule it was held that the earlier decision in R.S.  Makashi & Ors. and Wing Commander J. Kumar would be applicable.   It was, however, of some interest to note it was held that such a right of the  Appellants-petitioners therein could not have been taken away in the garb of  an Office Memorandum.  In the aforementioned fact situation, the law was

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stated in the following terms:

"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 take  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."

For the said reasons only the executive instruction was held to be ultra  vires Articles 14 and 16 of the Constitution of India.  It was further held that  by reason of the Memorandum impugned therein the right of the  deputationists could not have been taken away and in that view of the  matter, the offending part of the Memorandum was struck down, as prayed  in the writ petition.  The rights of the Appellants were held to have been  preserved and the words "whichever is later" were held to be ultra vires  Articles 14 and 16 of the Constitution of India.   

The decisions referred to hereinbefore, therefore, lay down a law that  past services would only be directed to be counted towards seniority in two  situations: (1) when there exists a rule directing consideration of seniority;  and (2) where recruitments are made from various sources, it would be  reasonable to frame a rule considering the past services of the employees  concerned.   

The said decisions, in our considered view, have no application in this  case, having regard to the provisions of Section 5-A of the Act, in terms  whereof no provision exists for recruitment of deputationists.  Recruitment  of deputationists, in fact, is excluded therefrom.   

In the instant case while exercising, as to its power under Rule 37(3),  there was no embargo for the State Government to lay down conditions for  permanent absorption of employees working in one Public Sector  Undertaking to another. Laying down of such conditions and acceptance  thereof have been held not to be violative by this Court in some decisions to  which we may refer to now.   

In Government of Andhra Pradesh & Ors. vs. M.A. Kareem &  Ors. [(1991) Supp. 2 SCC 183], this Court made a distinction between  appointments from one cadre to another, stating:

"\005.It has to be appreciated that the cadre of the Chief  Office is altogether different from cadre of the district  police offices/units where the respondents were earlier  appointed and they were not liable to be transferred to the  Chief Office. The service conditions at the Chief Office  were better, which was presumably the reason for the  respondents to give up their claim based upon their past  services. It is true that the differential advantage was not

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so substantial as to attract every LDC working in the  district offices/units, and in that situation the letter  Annexure ’B’ had to be circulated. However, so far as the  respondents and the two others were concerned, they  found it in their own interest to forgo their claim of  seniority on the basis of their past services and they did  so."

 In U.P. Awas Evam Vikas Parishad & Ors. vs. Rajendra  Bahadur Srivastava & Anr. [(1995) Supp.4 SCC 76], this Court opined:

"\005..In view of the unequivocal undertaking given by the  first respondent, it is no longer open to him to contend  that his dismissal (sic termination) order of 1971 was  illegal. He approached the High Court in 1991 seeking to  quash his termination order of 1971 after securing  conditional reinstatement. His challenge after his  appointment on his representation and acceptance of  conditions subject to which he was to be appointed is an  attempt to overreach his goal in a circuitous route. It is  hard to accept that within a short period of five months  he has shown such a remarkable capabilities in  discharging duties as appeared to be commendable to the  officers recommended in the letters relied on by the  respondent."

Yet again in Union of India & Anr. vs. Onkar Chand & Ors.  [(1998) 9 SCC 298], this Court was considering the effect of  clause 7(iii) of  the Recruitment Rules, which was applicable therein.  The said rule reads  thus:

       "Where a person is appointed by transfer in  accordance with provision in the Recruitment Rules  providing for such transfer in the event of non- availability of a suitable candidate by direct recruitment  or promotion such transferees shall be grouped with  direct recruits or promotees, as the case may be, for the  purpose of para 6 above. He shall be ranked below all  direct recruits or promotees, as the case may be, selected  on the same occasion."   

In that case, the Respondent was permanently absorbed on 31.12.1977  and interpreting the said Rules, this Court held that he must, therefore, take  his seniority below the persons in the department already in the cadre on that  date.  It was further held:  

"\005..On these factors, one cannot find fault with the  fixation of seniority of the said Onkar Chand by the  appellants, which was challenged before the Tribunal.  The Tribunal was not right in holding that the services  rendered by the said Onkar Chand as a deputation  promotee in the officiating cadre of ACIO-II from 2-1- 1978 has to be reckoned. The earlier ad hoc promotion as  ACIO-II being against the deputation quota that service  cannot be claimed by a deputationist once he opted for  permanent absorption in the department. If he wanted to  continue the seniority in the deputation quota by running  the risk of being repatriated to his parent department, he  ought not to have opted for permanent absorption. After  opting for the permanent absorption, he cannot claim the  benefits of absorption as well as the service put in by him  in the deputation quota as ACIO-II."

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This Court in Anand Chandra Dash vs. State of Orissa & Ors.  [(1998) 2 SCC 560], while considering a reverse case, i.e, when an  employee who was working as Senior Auditor in Revenue and Excise  Department and subsequently applied for the post of Senior Auditor in  Labour Department, opined: "\005..We find sufficient force in the aforesaid contention  of the learned counsel appearing for the appellant. That  the appellant was appointed as a Senior Auditor on being  duly selected by the Member, Board of Revenue on      28-10-1966 is not disputed. It is also not disputed that his  services were brought over to the Labour Department on  requisition being made to all the government departments  and on his name being sponsored by the Revenue  Department. It is no doubt true that the Labour  Department had indicated that the seniority will be  determined on the basis of the date of joining of the  Labour Department itself but the appellant had at no  point of time agreed to the said condition, and on the  other hand, unequivocally expressed his unwillingness to  come over to the Labour Department by letter dated        6-11-1970 and without consideration of the same the  Revenue Department relieved him requiring him to join  in the Labour Department."

It was thus, open to the Respondents herein not to agree to in spite of  the said conditions as they had already been working with a statutory  authority, they, however, expressly consented to do so.  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.  

[ See HEC Voluntary Retd. Emps. Welfare Soc. & Anr. vs. Heavy  Engineering Corporation Ltd. & Ors. [JT 2006 (3) SC 102] There is another aspect of the matter.  The Appellants herein were not  joined as parties in the writ petition filed by the Respondents. In their  absence, the High Court could not have determined the question of inter se  seniority.  [See Prabodh Verma & Ors. vs. State of U.P. & Ors. (AIR  1985 SC 167).]    In Ram Janam Singh (supra) this Court held:

"\005...It is now almost settled that seniority of an officer  in service is determined with reference to the date of his  entry in the service which will be consistent with the  requirement of Articles 14 and 16 of the Constitution.  Of  course, if the circumstances so require a group of  persons, can be treated a class separate from the rest for  any preferential or beneficial treatment while fixing their  seniority.  But, whether such group of persons belong to  a special class for any special treatment in matters of  seniority has to be decided on objective consideration  and on taking into account relevant factors which can  stand the test of Articles 14 and 16 of the Constitution.   Normally, such classification should be by statutory rule  or rules framed under Article 309 of the Constitution.   The far-reaching implication of such rules need not be  impressed because they purport to affect the seniority of  persons who are already in service."

There is yet another aspect of the matter, which cannot be lost sight  of.  This Court, in D.R. yadav & Anr. vs. R.K. Singh & Anr. [(2003) 7  SCC 110], having regard to the statutory scheme, opined:    "What was, therefore, relevant for the purpose of

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determination of seniority even in terms of Rule 7 of the  1985 Rules, was the continuous service rendered by the  employees concerned "on similar posts", which would  mean posts which were available having been legally  created or borne on the cadre.

The ad hoc or temporary promotion granted to the  appellants on 3-5-1986 and 13-1-1987 respectively on  non-existent post of Assistant Executive Engineer would  not, therefore, confer any right of seniority on them.   Thus, for all intent and purport for the purpose of  determination of seniority, the appellants were not  promoted at all.  Once they have been absorbed with  Respondent 1 and other employees similarly situated,  their inter se seniority would be governed by the statutory  rules operating the field.  The case of the appellants vis- ‘-vis Respondent 2 although may be governed by the  special rules, in terms of Rule 7, the same has to be  determined on the criterion of continuous length of  service including the service rendered in a Development  Authority, Nagar Mahapalika, Nagarpalika or  Improvement Trust on similar posts.  The appellants, it  will bear repetition to state, although were promoted at  one point of time on purely ad hoc basis to the post of  Assistant Executive Engineer as the said posts even in  their parent authority were not of similar type, the same  would not be relevant for the purpose of determining the  inter se seniority.  If the rule of continuous service in  same and similar posts is to be resorted to, the date of  initial appointment would be a relevant criterion therefor.  [See M. Ramchandran v. Govind Ballabh (1999) 8 SCC  592, K. Anjaiah v. K. Chandraiah (1998) 3 SCC 218,  Vinod Kumar Sharma v. State of U.P. (2001) 4 SCC 675  and S.N. Dhingra v. Union of India (2001) 3 SCC 125.]

xx              xx              xx              xx

As the post of Assistant Executive Engineer was  not a cadre post, the appellants cannot be said to have  been working on a higher post for the purpose of Rule 7  of the 1985 Rules."  

For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.   

However, in the event Respondent Nos.2 to 4 and 6 (intervener)  herein intend to question the validity of the notification dated 9/12/2002, it  would be open to them to do so, if they are aggrieved thereby.  It is made  clear that we have not gone into the question of the validity or otherwise  thereof.   

The appeals are allowed.  No costs.