REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9247    OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 23787 OF 2018)

DHARMENDRA PRASAD & ORS. .....APPELLANT(S)

VERSUS

SUNIL KUMAR & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO.  9248     OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 24101 OF 2018)

J U D G M E N T

HEMANT GUPTA, J.

1. The order dated 11th July, 2018 passed by the Division Bench of the

High  Court  of  Uttarakhand  at  Nainital  is  the  subject  matter  of

challenge in the present appeals.   

2. The High Court vide impugned order has directed the Uttarakhand

Pey Jal  Nigam1,  a  creation  of  the  Statute i.e.  the Uttar  Pradesh

Water Works and Sewer Arrangement Act, 1975, to determine the

seniority of the Junior Engineers strictly as per Regulation 23 of the

1  for short, ‘Nigam’

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Uttar  Pradesh  Jal  Nigam  Subordinate  Engineering  Service

Regulations, 19782.  Regulation 23 contemplates that the seniority

of a person appointed in any branch of service in any category of

post shall be made as per the date of substantive appointment.   

3. An  advertisement  was  issued  by  the  Nigam on  29th November,

2004 for  filling  up of  vacancies  of  241 posts  of  Junior  Engineer

(Civil). This included 104 posts under General category, 52 posts

under Other Backward Classes3, 70 posts under Scheduled Castes4

and 15  posts  under  Scheduled  Tribes5.   Another  38  posts  were

advertised  for  Junior  Engineer  (Mechanical).   The  advertisement

contemplated that the reserved posts shall be filled up as per the

reservation policy of the Government of Uttaranchal.  Further the

horizontal reservation in each category for females, ex-servicemen,

handicapped people and dependents  of  freedom fighters will  be

made as per the order of the Government of Uttaranchal dated 18th

July, 2001.   

4. The State Government permitted the Nigam to make appointments

to the posts of Junior Engineer and Assistant Engineer on 3rd May,

2005 (Annexure  R3/4)  and that  the  appointment  of  34 posts  of

Assistant  Engineer  and  107 posts  of  Junior  Engineer  was  to  be

made as per the prescribed roster after making calculations based

upon the Government order dated 31st August, 2001. Such sanction

2  for short, ‘Regulations’ 3  for short, ‘OBC’ 4  for short, ‘SC’ 5  for short, ‘ST’

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was in respect of 88 posts of Junior Engineer (Civil).

5. Pursuant to the above said advertisement,  the selection process

was completed and a merit list on the basis of marks obtained in

the  written  test  and  interview  was  published.   The  result  was

declared  separately  for  the  candidates  belonging  to  different

categories i.e. General category, OBC, SC and ST.  Thereafter, five

different sets of appointment orders were issued from May, 2005

till December, 2005, the first being issued on 13th May, 2005.  The

appointment orders were given to the candidates in each category

proportionate  to  the  quota  reserved  for  the  reserved  category

candidates. It is pertinent to note that one of the conditions in the

letter  of  appointment  was  that  the  seniority  will  be  determined

later.

6. Thereafter,  a  tentative  seniority  list  was  published  on  14th

September, 2010 based upon the merit list prepared on the basis

of the marks obtained in the written test and interview.  Objections

were filed to such tentative seniority list. The final seniority list was

published on 28th November, 2014 on the basis of the merit list

prepared while declaring the result.

7. The said seniority list became subject matter of challenge before

the  Uttarakhand  Public  Services  Tribunal6.   The  learned  Tribunal

dismissed  the  petition  vide  order  dated  10th October,  2017.

Thereafter, a review petition was filed which was also dismissed on

6  for short, ‘Tribunal’

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23rd November,  2017.   The  aforementioned  orders  were  made

subject matter of challenge before the High Court.  The High Court

held that since there is no dispute about the dates of appointment

of  the  candidates,  the seniority  has  to  be prepared in  terms of

Regulation 23 based upon dates of appointment rather than merit,

as the rule to determine seniority is from the date of appointment.

The  High  Court  has  allowed the  writ  petition  with  the  following

order:   

“35. The up-shot of the above discussion is that the writ petitioner is entitled to succeed. Accordingly, the writ petition is allowed; the order passed by the Tribunal in the Claim Petition, as also the order passed in the Review Petition, will stand set-aside; the Claim Petition of the petitioner will  stand allowed; the final seniority list, which impugned before the Tribunal, will stand set- aside; and the order dated 03.11.2014 will also stand set aside.  The fourth respondent will prepare a fresh seniority  list  in  accordance  with  law  and  the observations  made  in  this  judgment.   We  would  add that, as it is pointed out that petitioner was appointed along  with  several  others  by  a  common  order,  in respect of  the petitioner also,  the same principle will apply, namely, that, in respect of those person, they will be governed by the approved list.”

8. Resultantly,  the  candidates  who  rank  higher  in  merit  have

approached this Court.

9. The admitted facts are that the appellants before this Court are

higher in merit than the writ petitioners before the High Court but

the writ petitioners were appointed earlier in point of time than the

appellants who came to be appointed subsequently by the unique

method of appointment resorted to by the Nigam.  The Regulations

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have been framed by the Nigam under the Statute establishing the

same.  Some of the relevant Regulations read as under:

“Regulation  6.   Reservation  for  the  candidates belonging  to  Scheduled  Castes,  Scheduled  Tribes  & Backward  Castes  and  the  candidates  of  other categories shall be in accordance with the orders of the Government in force at the time of the recruitment.  

xx xx xx

Regulation 16 (1) When appointment has to be done on availability  of  vacancies,  Appointment  Authority  shall review all the applications received from the candidates and  will  inform  the  date  of  written  competitive examination  to  such  candidate/  candidates  who  are found suitable for recruitment under this Regulation. No candidates may be included in the written competitive examination unless he has got any authority or Admit Card from the Nigam.  

(2) Appointment  authority  shall  prepare  a  list  of candidates  in  order  of  merit,  as  is  evident  from  the written  examination,  and  invite  for  interview  those candidates  who  attains  qualification  as  per  standard fixed by the Nigam. Marks obtained by each candidate in the interview shall be added to the marks obtained in the written examination.  Final position of a candidate shall be determined by the total marks obtained him, and  thereafter  list  will  be  prepared.  If  two  or  more candidates  obtain  equal  marks,  then  the  candidate obtaining  more  marks  in  written  examination  will  be placed higher in the merit list. If two or more candidates obtain  equal  marks  in  both  written  examination  and interview,  then  a  candidate  having  more  marks  in diploma examination will be placed higher in the merit list.  

xx xx xx

Regulation  17  (1)  The  Appointing  Authority  shall recommend  the  list  of  candidates  prepared  by  the Selection  Committee  for  appointment.  Vacancies,  at present or likely to arise in future, will be filled by the candidates of this list.  

(2) If the Appointing Authority is not in agreement with the recommendation of Selection Committee, then this

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matter  shall  be  presented  before  the  Nigam.   The decision of the Nigam shall be final in this regard and the Appointment Authority will take action as directed by the Nigam.  

xx xx xx

Regulation 20.  On vacancies being created, Appointing Authority shall make appointment by taking names of candidates in the order in which they stand in the list prepared under Regulation 16(2) and 17 or 18.

xx xx xx

Regulation 23 (1)  In this Regulation, seniority of person appointed in any branch of service in any category of post  shall  be  made  as  per  date  of  substantive appointment  and  where  two  or  more  persons  are appointed  on  the  same  date,  seniority  will  be determined  by  such  order  in  which  their  names  are arranged in the appointment order.”

10. It  is  also  an  admitted  fact  that  the  result  was  declared  by  the

Nigam of each category i.e. General, OBC, SC, ST as per their own

merit.

11. Regulation 6 contemplates that the reservation for the candidates

belonging to SC, ST and Backward Classes and the candidates of

other  categories  shall  be  in  accordance  with  the  orders  of  the

Government in  force at  the time of  the recruitment.   The State

Government while permitting the Nigam to make appointments to

the posts  of  Junior  Engineer  on  3rd May,  2005 (Annexure  R3/4),

provided that the appointment of Junior Engineers will be made as

per the prescribed roster after making calculations based upon the

Government order dated 31st August,  2001.  The relevant extract

from the Government Order is as hereunder:

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“(2)   Appointment  on  total  34  posts  of  Assistant Engineer and total 107 posts of Junior Engineer will be made  as  per  the  prescribed  roster  after  making calculation based on the G.O. no. 1454/Karmik-2-2001 dated 31.8.01. This will be strictly complied with.”  

12. The Circular dated 31st August, 2001 (Annexure R3/3) has a 100-

point roster.  As per the said Circular, the first post is to be filled up

by a candidate belonging to the SC category and the last post, from

amongst  the 100-point  roster,  is  to be made under the General

category.   The  relevant  clause  from  the  said  Circular  reads  as

under:

“(1)  In continuation of the G.O. no. 1144/Karmik-2/ 2001-53(1)  dated  18  July,  2001  regarding  imple- menting the reservation policy in Uttaranchal, I am directed to state  that  19 per cent reservation for Scheduled  Caste,  04  percent  for  Scheduled  Tribe and 14 per cent for OBCs has been provide in direct recruitments.  

(2)  In order to ensure the aforesaid reservation, the following roster has been prepared…

(3)  It is requested that the aforesaid Roster shall continuously  be implemented in  matters  of  direct requirements.”

13. The stand of the State is that the Regulations are pari materia with

the Uttarakhand Government Servant Seniority Service Rules, 2002

which prescribes  that  the  seniority  of  persons appointed on the

basis of the result of any one selection, shall be the same as it is

shown in the merit list prepared by the Committee.  Reliance is

placed upon clause (9) of the appointment letter dated 13th May,

2005 which is to the effect that the seniority of the candidates to

the post of Junior Engineer (Civil/Mechanical) will be decided later.

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14. On the other hand, the Nigam in its counter affidavit stated that as

on 29th November, 2004, 241 vacancies of Junior Engineer (Civil)

were advertised.  The written examination was conducted on 26th

December, 2004 and the candidates were called for the interview.

The State Government approved 88 posts to be filled up as per the

roster mentioned in the Circular dated 31st August, 2001 and the

appointment orders were issued.  

15. Mr. Raju Ramachandran, learned senior counsel for the appellants

argued  that  the  High  Court  has  erred  in  law  in  upsetting  the

seniority  list  on  the  basis  of  Regulation  23  as  the  stand-alone

provision.  It is argued that Regulation 23 has to be read along with

other  Regulations  particularly  Regulations  16,  17  and  20.   The

appointing authority is bound to make appointments by taking the

name of  candidates  in  the order in  which they stand in  the list

prepared under Regulations 16(2) and 17 or 18.  All the Regulations

have to be read harmoniously and one Regulation cannot be read

in isolation so as to defeat  the merit  prepared by the Selection

Committee only on account of the fortuitous circumstance of giving

appointment to some of the candidates lower in the merit list at an

early point of  time.  Since appointments could be made only in

terms of  the  merit  list,  therefore,  Regulation  23 has to  be  read

along with        Regulation 20.  The mere fact that some juniors

have been appointed earlier in point of time will not make them

steal march over the appellants who are higher in merit.

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16. On the other hand, Mr. Nidhesh Gupta, learned senior counsel for

the  writ  petitioners  submits  that  the  writ  petitioners  were

appointed admittedly at an early point of time than the appellants.

The appellants have not raised any grievance at the time of the

appointment  of  the  candidates  lower  in  merit  on  the  alleged

violation of Regulations 16, 17 or 20.  Therefore, the seniority has

been  rightly  fixed  from  the  date  of  appointment  based  upon

Regulation  23  of  the  Regulations.   It  is  also  argued  that  the

Government order dated 31st August, 2001 is an order to determine

seniority as per the roster fixed in terms of Regulation 6. The letter

dated  3rd May,  2005  by  the  State  Government  while  granting

sanction  to  fill  up 88 posts  of  Junior  Engineer (Civil)  specifically

mentioned that reservation to the posts of Junior Engineer (Civil)

shall be in accordance with roster in the Government order dated

31st August, 2001.  Therefore, in any case, the seniority has to be

fixed as per the roster prescribed in the letter dated 31st August,

2001.

17. We find that the method of giving appointment to the senior most

person of each category is only a  fortuitus circumstance as such

appointments  were  made  dehors  the  merit.   Regulation  20

mandates the appointing authority to make the appointments from

amongst  the candidates in  order in  which they stand in  the list

prepared  under  Regulations  16(2),  17  or  18.   Any  appointment

made by the Nigam in contravention of the statutory Regulations

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cannot defeat the rights of the appellants only because they have

not challenged the appointment of their juniors at an earlier point

of time. Regulation 23 provides that seniority of persons appointed

in  any  branch  of  service  shall  be  made  as  per  substantive

appointment.  The appointment in Regulation 23 has to be read in

terms  of  Regulation  20  mandating  the  manner  of  appointment.

Therefore,  irrespective of  the date of  appointment,  the seniority

has to be fixed as per the merit of the candidates determined by

the Selection Committee.   

18. However,  we  find  that  Regulation  6  itself  contemplated  that

reservation of candidates belonging to SC, ST, Backward Classes

and the candidates of other categories shall be in accordance with

the orders of the Government in force at the time of recruitment.

In  terms  of  such  Regulations,  the  Government  order  dated  31st

August,  2001  becomes  applicable  to  determine  the  extent  of

reservation which includes the method of determining seniority as

well.   Apart from the statutory Regulation 6, even the approval of

the State Government to fill up 88 posts specifically mentions that

the  reservation  shall  be  made  as  per  the  100  points  roster  as

prescribed in the Circular dated 31st August, 2001.  Admittedly, the

seniority has not been framed keeping in view the roster circulated

on 31st August, 2001.  

19. We do not find any merit in the argument raised by the State that

the  seniority  has  to  be  fixed  as  per  Rule  5  of  the  Uttarakhand

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Government  Servant  Seniority  Service  Rules,  2002.   Such  Rules

were not adopted to be applicable to the Nigam.  The Rules were

approved  by  the  Board  of  the  Nigam on  24th September,  2007

proposing that the provision shall be made in the proposed service

regulations but the Rules were made applicable in the year 2011

only.  Such is the finding recorded by the High Court which is not

disputed by the appellants or by the writ petitioners. Such Rules

have  been  framed  under  the  proviso  to  Article  309  of  the

Constitution  and  they  are  not  applicable  to  a  creation  under  a

Statute.   These Rules  are  applicable  to  government  servants  in

respect of whose recruitment and condition of service Rules may

be or have been made by the Government under the proviso to

Article 309 of the Constitution.  Since the employees of the Nigam

are  not  government  servants  nor  are  their  service  conditions

governed by Rules framed under the proviso to Article 309 of the

Constitution, therefore, such Rules unless adopted by the Nigam

cannot be extended to the employees of the Nigam.  

20.  Therefore, we find that the order of the High Court and that of the

Tribunal are not sustainable in law as the seniority list has not been

prepared in accordance with the roster circulated on 31st August,

2001  which  is  required  to  be  mandatorily  followed  in  terms  of

Regulation 6 as well  with the approval of the State Government

dated 3rd May, 2005 to fill up 88 posts.   

21. Consequently, the seniority list finalised on 28th November, 2014 as

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also the order of the High Court dated 11th July, 2018 are set aside.

Respondent No. 5 is directed to recast seniority of the candidates in

the order of  merit  by assigning their  seniority  as per the roster

points  given in  Circular  dated 31st August,  2001.   With the said

directions, the appeals stand disposed of.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; DECEMBER 06, 2019.

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