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CASE NO.: Appeal (civil)  5005-5006 of 2003

PETITIONER: D.R. Yadav      & Anr.                                           

RESPONDENT: Vs. R.K. Singh & Anr.                                                

DATE OF JUDGMENT: 18/07/2003

BENCH: CJI. & S.B. Sinha.

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (Civil) No.19788-19789/2002)

S.B. SINHA, J :

       Leave granted.

       Dispute of inter se seniority between the appellants and the respondent  No. 1 is in question in this appeal which arises out of a judgment and order  dated 23.5.2002 passed by a Division Bench of the High Court of Judicature  at Allahabad, Lucknow Bench in Writ Petition No. 1780(S/B) of 2000 and  Writ Petition No. 195(S/B) of 2001.

FACTUAL MATRIX:

       The Legislature of the State of U.P. enacted U.P. Urban Planning &  Development Act, 1973 (hereinafter referred as ’1973 Act’).  The said Act  was enacted to provide for the development of certain areas of Uttar Pradesh  according to the plan and for matters connected therewith and ancillary  thereto.

       By reason of Section 4 of the said Act an Authority to be called the  Development Authority for any development area was constituted.  Section  5 deals with the staff of the said authority.  Sub-section (2) of Section 5 of  1973 Act contemplates that subject to such control and restrictions as may  be determined by general or special orders of the State Government, the  authority may appoint such number of other officers and employees as may  be necessary for the efficient performance of its functioning.  The reason for  the said enactment inter alia is stated to be:

"In the developing areas of the State of Uttar  Pradesh the problems of town planning and Urban  development need to be tackled resolutely.  The  existing local bodies and other authorities in spite  of their best efforts have not been able to cope with  these problems to the desired extent.  In order to  bring about improvement in this situation, the State  Government considered it advisable that in such  developing areas, Development Authorities  patterned on the Delhi Development Authority be  established.  As the State Government was of the  view that the Urban development and planning  work in the State had already been delayed it was  felt necessary to provide for early establishment of

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such authorities."

       By reason of the provisions of the said Act, thus, other statutes  governing the field relating to town planning and urban development  remained suspended in terms of Sub-section (1) of Section 59 of the Act.   Sub-Section (3) of Section 59 reads as under:

"On and from the constitution of the Development  Authority in relation to a development area which  includes the whole of a city as defined in the Uttar  Pradesh Municipal Corporations Act, 1959, all  posts borne on the establishment of the Municipal  Corporation of that city exclusively in connection  with its activities under Chapter XIV of the said  Adhiniyam or under the Uttar Pradesh (Regulation  of Building Operations) Act, 1958, immediately  before the date of the constitution of the  Development Authority, not being a post governed  by the Uttar Pradesh Palika (Centralized) Services  Rules, 1956 (hereinafter in this section referred to  as the Centralized Services), shall, on and from  such date, stand transferred to the Development  Authority with such designations as the Authority  may determine and officers and other employees  who are not members of any Centralised Services,  serving under the Municipal Corporation of that  city not exceeding the number of posts so  transferred shall be selected in accordance with  such directions as may be issued by the State  Government for being appointed on the said posts  and on such selection shall stand transferred to and  become officers and other employees of the  Development Authority and shall as such hold  office by the same tenure, at the same  remuneration and on the same terms and  conditions of service as they would have held the  same if the Authority had not been constituted, and  shall continue to do so unless and until such  tenure, remuneration and terms and conditions are  duly altered by the Authority.

Provided that any service rendered under the  Municipal Corporation by any such officer or other  employee before the constitution of the Authority  shall be deemed to be service rendered under the  Authority.

Provided further that the Authority may employ  any such officer or other employee in the discharge  of such functions under this Act as it may think  proper, and every such officer or other employee  shall discharge those functions accordingly."

       In terms of Section 4 of the said Act, Lucknow Development  Authority was constituted on 13.09.1974 whereupon all posts borne on the  development wing of the other local bodies like Nagar Mahapalika or  Municipal Corporation etc. stood transferred thereto.   

Pursuant to or in furtherance of applications having been invited to fill  up the posts of Assistant Engineer (C), the appellants applied therefor and  were subsequently appointed.  Appellant No. 1 joined the post of Assistant  Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on

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12.07.1979.  Respondent No. 1, however, was admittedly appointed on or  about 12.10.1976.   

       The State Government thereafter created Development Authorities  Centralised Service with effect from 22.10.1984 by inserting Section 5-A  therein.  In terms of Sub-Section (2) of Section 5-A, a person serving on the  posts included in such service immediately before such creation shall finally  or provisionally be absorbed in the Development Authorities Centralised  Service if he was confirmed in his post or if he was holding temporary or  officiating appointment, as the case may be.  The appellants were absorbed  in the posts of Assistant Engineer.  

       It is not in dispute that Respondent No. 1 was provisionally promoted  to the Post of Assistant Engineer on purely reference basis by an Office  Memorandum dated 3rd May, 1986.  Appellants were said to have been  promoted to the post of Assistant Executive Engineer on purely ad hoc basis  in terms of Office Memorandums dated 3rd May, 1986 and 31st January,  1987.  The appellants as also Respondent No. 1 were finally absorbed in the  Centralised Service on the post of Assistant Engineers by an Office  Memorandum issued on 14 May, 1987.   

The State Government issued a seniority list in terms of Office  Memorandum dated 12th April, 1996.   The said seniority list was the subject  matter of Writ Petition filed by Respondent No. 1.  In the meantime,  Appellant No. 1 was promoted to the Post of Chief Engineer resulting in   filing of second Writ Petition before the Lucknow Bench of Allahabad High  Court by the Respondent No. 1.  However, during pendency of the said Writ  Petition, the order of promotion of Appellant No. 1 was rescinded on  29.11.2001.  Several applications thereafter were filed before the State  Public Services Tribunal questioning the said seniority list and the  promotion to the Posts of Executive Engineer and Chief Engineer.  The  Tribunal allowed the said applications whereagainst the State of Uttar  Pradesh  preferred several writ applications.  The writ petitions together with  the writ applications pending before it were taken up for hearing by the High  Court and by reason of the impugned judgment dated 23.05.2002 it was held  as follows:

"Having examined the materials on record and the  submissions made by the parties and in the light of  various decisions of the Supreme Court referred  hereinabove, we find no infirmity in the impugned  judgment of the Tribunal and the Tribunal has not  erred in directing the State Government to  determine the seniority of the claimants and to  grant promotions with effect from the date their  juniors have been so promoted.

Therefore, while affirming the judgments of the  Tribunal, we direct that in the light of the decision  of the Apex Court in the case of Mohan Karan’s1  case, the seniority in the cadre of Junior Engineers,  Assistant Engineers and Chief Engineers shall be  counted from the date of initial appointment and  the members of the Centralised Service who had  rendered service in other departments on similar/  equivalent posts, shall be decided in the light of the  decisions of the Supreme Court and the  observations made hereinabove.  The State  Government shall make endeavour to comply  directions of the Tribunal with respect to fixing of  seniority and promotion of the claimant â\200\223  respondents within three months."

       It is not in dispute that two different rules relating to determination of

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seniority were operating in the field; one being a general rule known as ’The  Uttar Pradesh Government Servants Seniority Rules, 1991’; the other  being  the special rules known as ’U.P. Development Authorities Centralised  Service Rules, 1985’ framed by the State of Uttar Pradesh in exercise of its  powers conferred under Section 55 of the Uttar Pradesh Urban Planning and  Development Act, 1973 read with Section 5-A thereof.

RELEVANT STATUTORY PROVISIONS:

       The relevant rules of U.P. Development Authorities Centralised  Service Rules, 1985 which are material for the purpose of this case read as  under: "PART II CADRE AND STRENGTH 3. (1) There shall be the following categories of the  posts  in  the cadre  of  the service and they shall consist  of the  posts  mentioned against them â\200\223

Service Posts included in the service Scales of Pay  in Rs     1 2 3 I to III Omitted

IV. Town  Planning &  Architectural 1. Mukhya Nagar Niyojak 1780-2300

2. Nagar Niyojak 1250-2050

3. Sahayak Nagar Niyojak 850-1720

4. Vastuvid/Statistical  Assistant 570-1100

5 to 10 Omitted

V to VIII Omitted  

Note. - The undernoted 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.  Post Post(s) included (1) to (8) Omitted (9) Mukhya Nagar Niyojak Vastuvid Niyojak (10) Sahayak Nagar Niyojak Vastuvid (Rs. 850-1720)/Sahayak

Vastuvid/Landscape     Vastuvid/

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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.  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,  Nagarpalika or Improvement Trust on similar  posts.  

21. Procedure for recruitment by promotion:  Recruitment by promotion shall be made on the  basis of seniority subject to the rejection unfit (in  accordance with the Uttar Pradesh Promotion by  selection in Consultation with Public Service  Commission (Procedure) Rules, 1970 as amended  from time to time.   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.  

         *                 *                 * (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.  

       The relevant provisions of Uttar Pradesh Government Servants  Seniority Rules, 1991 read as under: "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.  

3. These Rules shall have effect notwithstanding  anything to the contrary contained in any other  service rules made heretobefore.  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 are no such rules, the executive

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instructions issued by the Government regulating  the recruitment and conditions of service of  persons appointed to the relevant service;  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."  PRIMAL QUESTION:

       The dispute between the parties before the High Court as stated in the  impugned judgment is as under:

"The crux of the matter in these petitions is  fixation of seniority and consequential promotions.   As mentioned earlier with effect from 12.6.1973  the Uttar Pradesh Planning and Development  Ordinance, 1973 was promulgated for the purpose  of creating various development authorities in  Uttar Pradesh.  The said ordinance later on became  the Act (U.P. Act No. 11 of 1973) which came into  existence on 7.11.1973.  In pursuance of the said  ordinance and Act, various development  authorities were created through notification issued  in exercise of the powers under Section 4 of the  said Act of 1973.  In the development authorities,  initially besides other staff, Junior Engineers and  Assistant Engineers were appointed by the  concerned authorities of respective development  authorities.  Thereafter, some Junior Engineers  were promoted to the post of Assistant Engineer in  50% promotion quota and some Assistant  Engineers were promoted to the post of Executive  Engineer."

        SUBMISSIONS:

       Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of  the appellants raised a short question in this appeal.  The submission of  learned counsel is that the High Court went wrong in applying the 1991 rules  relying on or on the basis of decision of this Court in Mohan Karan (supra)  without effectively considering the provisions of Article 309 of Constitution  of India.  It clearly stipulates that in terms of proviso appended thereto the  Governor can frame a rule so long as the State or the concerned statutory  authorities do not make any provisions laying down the conditions of service  by or under a statutory enactment.  In other words, once a Legislation has  come into being and rules have been framed thereunder governing the field,  the general rules made by the Governor in terms of proviso appended to  Article 309 of the Constitution of India must give way to the special rules  framed under the statute.  Thus, when there exist Special Rules, General  Rules cannot be applied.  Strong reliance in this behalf has been placed on  Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others  [(2002) 6 SCC 127].   

       The learned counsel would further submit that the decision of this  Court in Mohan Karan (supra) does not lay down a good law.    

       Mr. Dwivedi would urge that as the appellants were absorbed in the  centralised services, their seniority shall be determined in terms of Rule 7 of  the 1985 Rules.   He would in this connection lay emphasis on the words ’on  similar posts’ occurring in Rule 7.

       Mr. Harish Salve, the learned Senior Counsel, on the other hand,  would submit that assuming that the special rule shall apply in the instant

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case; the same would be of not much relevance as the seniority has to be  determined in terms of Sub-Rule (1) of Rule 7 of 1985 Rules on the criteria  of continuous length of service including the service rendered in a  Development Authority, Nagar Mahapalika, Nagarpalika or Improvement  Trust on similar posts, and as the manner for determination of continuous  length of service is not provided in the said sub-rule, the general rule must  be taken recourse to for the said purpose.  In this connection our attention  has been drawn to the cadre of Service contained in Rule 3 of the 1985  Rules.

FINDINGS         

       It appears that having regard to the absorption of the employees from  different authorities in the Centralised Service on 22.10.1984, according to  the High Court,  some sort of chaos was created amongst the members of the  Service.  The High Court relying on or on the basis of a Division Bench  decision of this Court in Mohan Karan’s case (supra) held that the provisions  of the Rules 1991 shall apply for the purpose of determination of inter se  seniority.  Therein it was held:

14. We have already extracted Rule 6 of these  Rules, which relates to seniority where the  appointments are 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 the 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 servants in U.P. should be fixed in the  light of these Rules. Therefore, we are inclined to  hold that Rule 6 of the U.P. Government Servants’  Seniority Rules, 1991 cannot be ignored as it has  overriding effect on Rule 7 of the Centralised  Services Rules.

       The 1991 Rules were framed by the Governor of Uttar Pradesh in  exercise of his power conferred under the proviso appended to Article 309 of  the Constitution of India. The Proviso appended to Article 309 of the  Constitution reads thus:

"Provided that it shall be competent for the  President or such person as he may direct in the  case of services and posts in connection with the  affairs of the Union, and for the Governor of a  State or such person as he may direct in the case of  services and posts in connection with the affairs of  the State, to make rules regulating the recruitment,  and the conditions of service of persons appointed,  to such services and posts until provision in that  behalf is made by or under an Act of the  appropriate Legislature under this article, and any  rules so made shall have effect subject to the  provisions of any such Act."

       On a plain reading of the said provision, there cannot be any doubt  whatsoever that rules framed thereunder would apply so long as a statute or  statutory rules or any other subordinate legislation governing the conditions  of service are not enacted or made or not otherwise operating in the field.  In  other words, rules made under proviso to Article 309 of the Constitution are  for a transitory period and the same would give way to the special rules once  framed.  However, if a statute or rules made thereunder was/were already

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operating in the field, the general rules made under proviso to Article 309  would not apply to the Services created thereunder.  

       The submission of Mr. Dwivedi to the aforementioned extent appears  to be correct.   

       In the event two conflicting rules are operating in the same field, the  doctrine of generalia specialiabus non derogant shall apply.  It was so held in  Chandra Prakash Tiwari (supra).   

But the question which arises for consideration in these appeals does  not solely depend on the applicability of the general rules vis-Ã -vis the  special rules.   

It is true that the appellants were sought to be promoted to the Posts of  Assistant Executive Engineer.  The said posts, however, were not available.   They were, therefore, absorbed ultimately in the posts of Assistant Engineer.   The State of U.P. in its counter affidavit stated:

"It is stated that petitioner No. 1 was promoted on  temporary basis by Lucknow Development  Authority till further orders on the post of  Assistant Executive Engineerâ\200¦It is relevant to  mention that on 22.10.1984, the petitioners were  working on the post of Assistant Executive  Engineer.  Upon creation of the U.P. Development  Authorities Centralised Service, since there was no  post of Assistant Executive Engineer in the said  service, hence the petitioners were absorbed on the  post of Assistant Engineer in the service."

       What was, therefore, relevant for the purpose of determination of  seniority even in terms of Rule 7 of the 1985 Rules, was the continuous  service rendered by the concerned employees ’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  03.05.1986 and 13.01.1987 respectively on non-existent posts 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 No. 1 and other employees similarly situated,  their inter se seniority would be governed by the statutory rules operating in  the field.  The case of the appellants vis-Ã -vis Respondent No. 2 although  may be governed by the special rules, in terms of Rule 7, the same has to be  determined on the criteria 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 posts 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 criteria therefor. [See M.  Ramachandran Vs. Govind Ballabh and others [(1999) 8 SCC 592], K.  Anjaiah and Others Vs. K. Chandraiha and others [(1998) 3 SCC 218],  Vinod Kumar Sharma Vs State of U.P. and Another [(2001) 4 SCC 675],  S.N. Dhingra and others Vs. Union of India and others [(2001) 3 SCC 125].

       In a recent decision in Kaushal Kishore Singh Vs. Dy. Director of  Education and others [(2002 AIR SCW 19)], this Court held:

"The claim of seniority of the employee is always

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determined in any particular Grade or Cadre and it  is not the law that seniority in one Grade or Cadre  would be dependent on the seniority in other Grade  or Cadre."

                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.   

Yet again in Md. Israils and others Vs. State of West Bengal and  others (2002 AIR SCW 68), it was held:

"The corollary of the above Rule is, where the  initial appointment is only adhoc and not  according to the rules and made as a stop-gap  arrangement, the officiation in such post cannot be  taken into account for considering the seniority."

CONCLUSION:

       In view of our findings aforementioned, we have no other alternative  but to uphold the order of the High Court, albeit for different reasons.   Accordingly, the Appeals are dismissed.  The parties shall pay and  bear  their own costs in these appeals.

       In view of aforementioned, it is not necessary to pass any separate  order on the Interlocutory Applications.