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PETITIONER: MOHAN KARAN

       Vs.

RESPONDENT: STATE OF U.P. & ANR.

DATE OF JUDGMENT:       18/03/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami, J.      The appellant, feeling aggrieved by the promotion given to the  second respondent  herein  as  chief  Town  planner. Bareilly, as  per the  order  dated  6/7.  7.92,  moved  the Allahabad High  Court, Lucknow  Bench, with a prayer for the issue of  Writ of  Certiorari to  quash the selection of the second  respondent  as  Chief  Town  Planner  (Mukhya  Nagar Niyojak)  and  also  for  the  issue  of  Writ  of  Mandamus directing the  first respondent to consider his case for the post of  Chief town  Planner and  to promote him to the said post with consequential benefits.      Short facts  leading to the filing of the Writ Petition No. 3849/92 before the High Court are the following:-      On the coming into force of the U.P. Urban Planning and Development Act,  1973, the  Development  Authorities’  were constituted for  the declared  development areas.  One  such Development Authority constituted in September, 1974 was the Lucknow Development  Authority. The  said Authority  had the power to  appoint officers and employees for the performance of functions  entrusted to it under Section 5(2) of the 1973 Act. A  proposal  for  creation  of  certain  posts  in  the planning Section  of the  Lucknow Development  Authority was moved for  consideration on 3.3.76. Pursuant to that, in the meeting held  on 15.10.76.  Pursuant to that, in the meeting held  on   15.10.76,  the   Vice  Chairman  of  the  Lucknow Development Authority  Intimated about the creation of posts in the  planning Section  inter alia Assistant Architect and Executive Officer  (RBO). By  a letter  of appointment dated 29.12.76,  the  appellant  was  appointed  on  the  post  of Assistant Architect  in the pay scale of 55.-1200, which was revised by  the pay  Commission to  850-1200, w.e.f. 1.7.79. The appellant  joined the  service as Assistant Architect on 7.2.77. Subsequently,  the appellant  was promoted on ad hoc basis as  Executive officer (RBO) on 7.2.83 in the pay scale of 800-1450,  which was  subsequently revised  as  1250-2050 with effect  from a  date  prior  to  7.2.83.  However,  the appellant was  reverted to  the original  post of  Assistant Architect by  an order dated 2.4.83. This order of reversion was challenged  by the appellant before the Lucknow Bench of

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the Allahabad  High court  in Writ  Petition No.  1929/83 on 14.4.83. The  High Court  finally heard  and disposed of the Writ petition on 22.7.87 accepting the case of the appellant and  consequently   quashing  the  order  of  reversion  and directing Authorities  to restore  the appellant to the post of Executive  Officer (RBO) with all consequential benefits. In the  meanwhile, the  1973 Act  was amended on 22.10.84 by inserting  Section   5-A,  which  enabled  the  creation  of ’Development Authorities  Centralised Services’.  Later  on, the U.P. Development Authorities Centralised Services Rules, 1985 were  framed under  Section 5-A read with section 55 of 1973 Act.  These Rules  came into force on and from 25.6.85. According to  Rule 3,  certain posts in the cadre of service of ’Town  Planning and  Architectural’ were  enumerated. for our purpose, the following four posts need a reference:- 1. Mukhya Nagar Niyojak  1780-2300 2. Nagar  Niyojak        1250-2050 3. Sahayak Nagar Niyojak 850-1720 4. Vastuvid/Statistical    Assistant             570-1100      As contemplated  under the  Centralised Services Rules, the   appellant    was   absorbed    as    Assistant    Town Planner/Assistant Architect  which post  the  appellant  was holding when he was reverted in the pay scale of 850-1720 by an order  dated 14.5.87. This order of absorption was passed when the matter was pending before the Allahabad High Court, which was  disposed of  only on  22.7.87, as  noticed above, allowing the appellant’s case. The judgment of the Allahabad High Court  was given effect to by the Authorities by making an entry  in the  service Book of the appellant on 13.6.1991 to the  effect that the appellant stood promoted to the post of Architect w.e.f. 7.2.83 in the pay scale of Rs.1250-2050.                                      (emphasis supplied)      However, the Authorities, without noticing the judgment dated 22.7.87 of the Allahabad High Court, gave promotion to the appellant  to the post of Town Planner on 29.7.87 in the pay scale  of 1250-2050.  it must  be noted  that as per the Allahabad High  Court judgment,  which was  given effect  to subsequently on  13.6.91, for  the appellant was holding the post of  Architect in  the pay  scale  of  1250-2050  w.e.f. 7.2.83.      As against  the above  history of the appellant, let us now look  into the  service record of the second respondent. The second respondent was appointed as Architect, equivalent to Assistant  Town Planner,  on 29.10.76 in the pay scale of 850-1720. However,  the second  respondent was  promoted  as Senior Architect  in the  pay scale  of  1250-2050  only  on 16.5.84, whereas  the appellant  was promoted  as  Executive officer (RBO)  in the  pay scale of 1250-2050 w.e.f. 7.2.83, i.e., much earlier to the promotion of the second respondent to the  post of  Senior Architect  in the pay scale of 1250- 2050. Further  promotion will  be to  the post of Chief town Planner. For  this, the  second respondent was preferred and given appointment  on 6.7.1992.  Hence, the  appellant moved the Allahabad  High Court,  Lucknow Bench,  for  the  relief mentioned above by filing W.P. 3849/92.      The High  Court was  of  the  view  that  the  post  of Executive Officer  (RBO) held  by the  appellant was  not  a cadre post  in the  Centralised Services  Rules and  he  was absorbed in  a lower  grade when  the second  respondent was holding a  post in  the higher  grade. Even though, the High Court noticed  the judgment  allowing the  writ Petition No. 1929/83 and  which enabled  the appellant  to draw salary in the pay  scale of  1250-2050 from  7.2.83, held  that he was promoted in  the pay scale of 1250-2050 only on 13.6.91 when

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the entry  was made  on that date in the Service Book of the appellant. The High Court herein again failed to notice that the entry  made on  13.6.91 expressly  gave  effect  to  the promotional order  w.e.f. 7.2.83. Ultimately, the High Court dismissed the Writ Petition of the appellant.      Aggrieved by  the  decision  of  the  High  Court,  the present appeal  by special  leave has  been preferred by the appellant.      Learned counsel appearing for the appellant elaborately argued the  case of the appellant by bringing to our notice, in  detail,  the  facts  as  well  as  the  relevant  Rules. According  to   the  learned   counsel,  the   criteria  for determining the  seniority between  the  appellant  and  the second respondent must be on the basis of Rule 7 of the U.P. Development Authorities Centralised Services Rules, 1985 and not on  the basis  of Rule 6 of the U.P. Government Servants Seniority Rules, 1991 or Rule 28 of the Centralised Services Rules. According  to the  learned Counsel,  Rule  7  of  the Centralised Services  rules is  a special one which excludes all other  general  rules.  In  this  connection  he  placed reliance  on   the  well-known   Latin   Maxim:   ’generalia specialibus non derogant’. In substance that maxim means the special excludes  the  general.  According  to  the  learned counsel, Rule  7 of  the Centralised  Services  Rules  being special one  excludes Rule 6 of the U.P. Government Servants seniority rules  a general  one. In  support of    that,  he placed reliance  on a  judgment of the Constitution Bench in Ashoka Marketing  Ltd. &  Anr., etc. Vs. P.N.B. & Ors., etc. [(1990) 4 SCC 406]. He also contended that the scope of Rule 3 of  the Centralised  Services Rules  had not been properly interpreted by  the High  Court when  it held  that  in  the absence of  express enumeration  of the  post  of  Executive Officer  (RBO)   in  the  Centralised  Services  Rules,  the appellant cannot  claim the  services rendered  in that post notwithstanding the  scale of  pay  drawn  by  him  for  the purpose of  further promotion.  A proper  reading of Rule 3, read with the Note-1 and also Rule 7, will clearly indicate, according to  the counsel,  that the  post held  in  various Development Authorities  with  different  nomenclature  will have to  be co-related  to the  post  enumerated  under  the Centralised Services  rules with  reference to  the scale of pay attached  to the particular post and not on the basis of enumeration/nomenclature in the Centralised Services ’rules. Likewise, the  learned counsel contended that the high Court has made  certain factual  errors, which led to the judgment being rendered against the appellant. For instance, the High Court made  a mistake  in thinking  that the  appellant  was promoted to the post of Town Planner only on 13.6.91 whereas factually he  was promoted  to the post of executive Officer (RBO), which  is the  post equivalent  in the  cadre of Town Planner, on  and from 7.2.83. Similarly, the High Court also went wrong  in mentioning that the appellant was promoted in the pay  scale of  570-1100 when  his  original  appointment itself was  in the  pay scale  of 850-1720.  In the light of these  submissions,   learned  counsel  submitted  that  the judgment of the High Court is liable to be set aside and the reliefs sought by the appellant should be granted.      Learned  counsel   appearing   for   the   respondents, contending contra,  submitted that the interpretation of the High court on Rule 3, read with Note-1 under Rule 3 and also Rule 7  of the  Centralised Services  Rules, was the correct one and so far as the position of seniority is concerned, it must be  reckoned on  the  basis  of  Rule  6  of  the  U.P. Government Servants  Seniority Rules,  1991 and  not on  the basis of  Rule 7 of the Centralised Services Rules. Rules 28

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and 37  of the Centralised Services Rules also, according to the learned  counsel, support  the view  taken by  the  High Court.  Learned  counsel  for  the  respondents,  therefore, submitted that  the judgment of the High Court does not call for any interference.      On  facts   regarding  the  dates  of  appointment  and promotion, there is not controversy.      We have  considered the  rival submission.  As  noticed earlier, the  facts are  not in  dispute, in particular, the fact that  the appellant  was promoted  as Executive officer (RBO) on  7.2.83   in the  pay scale of 1250-2050, cannot be disputed in  the light  of the judgment of the High Court in Writ Petition  No. 1929/83. It is also an admitted fact that the initial appointment of the second respondent was earlier to that  of the  appellant. However, while the appellant was promoted to a post in the pay scale of 1250-2050, the second respondent was promoted to an analogous post in the same pay scale only on 16.5.84 . In that situation, how the seniority between the  two has  to be  settled is  the  only  question before us. For deciding this, it is necessary to set out the relevant portion of the Rules. They are as follows:- Rule  3  of  the  U.P.  Development  Authorities  Centralise Services Rules, 1985:                 PART II - CADRE AND STRENGTH      "Rule 3(1)  There shall  be the following categories of the posts  in the  cadre of  the  services  and  they  shall consist of the post mentioned against them:- ------------------------------------------------------------ Service            Posts included in the    Scales of Pay                    service                  In Rs. ------------------------------------------------------------ 1                    2                        3 ------------------------------------------------------------ I. to III                           Omitted IV. Town planning   1. Mukhya Nagar Niyojak  1780-2300 & Architectural     2. Nagar  Niyojak        1250-2050                     3. Sahayak Nagar Niyojak 850-1720                     4. Vastuvid/Statistical                        Assistant              570- 1100                     5. to 10 Omitted VI. to VIII                       Omitted ------------------------------------------------------------ NOTE- -  The under  noted posts,  as specified  above, shall include the post or posts mentioned against them as also the posts carrying  identical scales  of  pay  in  the  same  or equivalent cadre.            (Emphasis Supplied) Post                         Post(s) included (1) to (8)                    Omitted 9. Mukhya Nagar Niyojak       Vastuvid Niyojak (10) Sahayak Nagar Niyojak    Vastuvid (Rs. 850-1720)/                               Sahayak Vastuvid/Land                               Scape Vastuvid/Vastuvid                               Niyojak/Research Officer. (11) to (22)                       Omitted Note: (2) The post or posts specified above but not existing in any  Development Authority  on the date of enforcement of these rules,  shall not  mean to  have been  created or come into existence by virtue of the provisions of this rule."      "Rule 7  (1) Notwithstanding  anything in  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  rended   in   a   Development   authority,   Nagar Mahapalika, Nagarpalika  or  Improvement  Trust  on  similar

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posts."      Rule  28(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 of  appointment are issued in      respect of  any one  selection  the      seniority shall  be as mentioned in      the combined  order of  appointment      issued under  sub-rule (3)  of rule      25.      Rule  28   (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.      "Rule 37(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 wit the affairs of the State. Relevant Rules  of the  U.P. Government  Servants  seniority rules 1991 -      Rule 2:  - These  rules shall  apply to  all Government servants in  respect of  whose recruitment and conditions of Service, rules  may be  or have  been made  by the  governor under the proviso to Article 309 of the Constitution.      Rule 3:  These rule  shall have  effect notwithstanding anything to  the contrary  contained in  any  other  service rules made heretobefore.      Rule  4:  In  these  rules  unless  there  is  anything repugnant in the subject or context, the expression -      (f): "Service" means the service in which the seniority of the member of the service has to be determined;      (g): "service  rules" means  the rules  made under  the proviso to  Article 309 of the Constitution, and where there ar no  such rules,  the executive instructions issued by the Government regulating  the  recruitment  and  conditions  of service of persons appointed to the relevant service;      Rule  6:   Where  according   to  the   service  rules, appointments are  to be made only by promotion from a single feeding  cadre,   the  seniority  inter  se  of  persons  so appointed shall be the same as it was in the feeding cadre."      Undoubtedly, on  a persual  of the judgment of the High Court ,  we are  convinced that the High Court has committed certain factual  and legal  errors. None  the less,  in  our view, the  conclusion reached  by the  High Court  has to be sustained for the reasons, which are given below.      As per  Rule 2,  the U.P. Government Servants Seniority Rules, 1991  apply to  all government servants in respect of whose recruitment  and conditions  of service rules are made or to  be made  by the Governor under the proviso to Article 309 of  the Constitution.  Rule 4  (f)) defines "service" to mean the service in which the seniority of the member of the service has  to be  determined. "Service rules"  are defined in Rule  4(g) to  mean the  rules made  under the proviso to Article 309 of the Constitution, and where there are no such rules, the  executive instructions issued by the Government, regulating the  recruitment and  conditions  of  service  of persons  appointed,   to  the  relevant  service.  The  more important rule, namely, Rule 3 reads as follows:-      "These  rules   shall  have  effect      notwithstanding  anything   to  the      contrary  contained  in  any  other      service rules made heretobefore."

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    We have  already extracted Rule 6 of these Rules, which relates to  seniority where  the appointments  by  promotion only from  a single  feeding cadre.  But for  Rule  3  above mentioned, we would have accepted the contentions of learned counsel for the appellant and upset the judgment of the High Court. Rule  3, in  our view, overrides all other rules made earlier in  other services in the State, whereas Rule 7 of t he Centralised  Services Rules  has  the  overriding  effect against Rule  28 of  those Rules only. Further, the title of 1991 Rules  clearly suggests  that the  seniority among  the Government servant  in U.P.  Government  Servants  Seniority Rules, 1991 cannot be ignored as it has overriding effect on Rule 7  of the  Centralised  Services  Rules.  The  decision relied on  by the  learned counsel  for  the  appellant,  no doubt, has  laid down  the law  in para  50  of  the  Ashoka Marketing Ltd. case (supra), which is as follows:-      "One such  principle  of  statutory      interpretation which  is applied is      contained in the latin maxim: leges      posteriors   prioress   conterarias      abrogant   (later   laws   abrogate      earlier   contrary    laws).   This      principle   is   subject   to   the      exception embodied  in  the  maxim:      generalia specialibus  non derogant      (a  general   provision  does   not      derogate from  a special one). This      means  that   where   the   literal      meaning of  the  general  enactment      covers   a   situation   of   which      specific  provision   is  made   by      another enactment  contained in the      earlier Act,  it is  presumed  that      the  situation   was  intended   to      continue to  be dealt  with by  the      specific  provision   rather   than      later   general    one    (Bennion,      Statutory Interpretation  pp.  433-      34)."      We do  not think  that the ratio laid down in the above mentioned judgment  can be applied to the facts of this case as the   U.P. Government Servant Seniority Rules prevail for the purpose  of  deciding  seniority  over  Rule  7  of  the centralised  Services  Rules.  Learned  counsel  also  cited another judgment of this court in R.K Sethi & Anr. Vs. Oil & Natural Gas Commission & Ors. [(1997) 10 SCC 616] to support the claim  of the  appellant that  in any  event if a junior employee (meaning  thereby the  second respondent)  is given promotion without  considering his  senior (meaning  thereby the appellant),  the senior  employee can claim the right to be considered  for such  promotion from  the date the junior was promoted.  We do  no think  that we  need go  into  this question as  on facts  and applying  the Rule  6 of the U.P. Government Servants  Seniority Rules,  the second respondent must be  deemed to  be senior  in view  of the admitted fact that he  entered  into  the  service  (feeding  cadre)  much earlier to  that of the appellant. We, however make it clear that if  the appellant  has earned  his right  for promotion dehors claiming  seniority over  the second respondent, that right should  be decided  independently without reference to this judgment.  If Rule  6 of  the U.P.  Government Servants Seniority Rules  is applied,  the appellant is junior to the second respondent  in the  cadre of  Town planner  cannot be disputed. if  so, further  promotion  given  to  the  second respondent as Chief Town Planner cannot be faulted.

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    In the result, the appeal is dismissed and the order of the High  Court is  sustained though  for different reasons. There will be no order as to costs. IN THE MATTER OF