REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3540     OF 2008 (Arising out of SLP (C) No.12124 of 2006)

State of Uttaranchal & Anr. … Appellant

Versus

Madan Mohan Joshi & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Inter se seniority amongst the teachers of Kumaon University is in

question in this appeal which arises out of a judgment and order dated

21.3.2006 passed by a Division Bench of the High Court of Uttaranchal

at Nainital in Writ Petition No.71 of 2004).

Before adverting to the aforementioned question,  we may notice

the factual matrix involved in the matter.

3. First Respondent was appointed on an ad hoc basis as a Lecturer in

Government P.G. College, Almora by the State of Utter Pradesh through

Vice-Chancellor, Kumaon University on or about 22.9.1975.  The said

College  was  declared  as  the  Campus  College  of  the  University.   All

Lecturers including the first  respondent were continued and treated on

deputation  with  the  University;  the  cut  off  date  wherefor  was  fixed

16.8.1977.  The State of Utter Pradesh framed U.P. Regularization Rules,

1979, the relevant provisions whereof reads as under :

4.(i) Any person who

(i) was  directly  appointed  on  ad  hoc  basis before  1.1.1977  and  is  continuing  in service.

(ii) Possessed  requisite  qualification prescribed for regular appointment at the time of such ad hoc appointment, and

(iii) Has  completed or,  as  the case may be,  after  he has completed three years continuous service.

Shall be considered for regular appointment in permanent  or  temporary  vacancy  as  may  be available  on  regular  appointment  is  made  in such vacancy in  accordance  with  the  relevant service rules or orders.”

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4. Pursuant to and in furtherance of the said Rules, services of 355 ad

hoc Lecturers were regularized.   However, the cases of nine Lecturers

including  the  first  respondent,  who  had  been  working  on  deputation,

were left out.  It is contended that one Savita (Mohan) Dhondiyal who

had also been appointed as an ad hoc Lecturer on 17.4.1975 and, thus,

being junior to the first respondent was regularized.  

5. Representations  were made by the respondents  and others.   The

Directorate  of  Higher  Education,  Uttar  Pradesh  asked  the  Vice-

Chancellor  of  the  University  to  forward  the  list  of  the  said  Lecturers

pursuant  whereto,  services  of  nine  Lecturers  including the  respondent

were regularized by an order dated 11.7.1980, stating :

“The appointing authority in exercise of powers conferred by Rule 5 of the Regularisation of Ad hoc  Employees  on  the  posts  within  the jurisdiction  of  the  U.P.  Public  Service Commission  Rules,  1979  issued  by  the Department  of  Personnel  vide  its  Notification No.19/8/75[1]  dated  14th May,  1979,  and  in view  of  the  recommendations  made  by  the Selection  Committee  constituted  for regularization of the ad hoc lecturers working in  various  Government  Colleges  under  the Directorate  of  Education  prior  to  1st January, 1977  in  the  pay  scale  of  700-1600,  hereby regularizes appointments of  the lecturers with effect  from the  date  of  issuance  of  this  order and  they  are  being  given  temporarily  regular

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appointments  on  the  posts  of  Lecturers  w.e.f. 11th July, 1980.

However, the seniority of these lecturers shall be according to their Serial number given in the enclosed Annexure and they will  be junior  to those lecturers who have been regularized and appointed  prior  to  the  date  of  regular appointment of these lecturers.”

6. Aggrieved by the said order, they made a representation.

7. By an order dated 9.6.1988, the services of the respondent were

appointed with effect from 1.7.1983, it was stated :

“Following  officers  of  the  Government  Colleges working as Lecturers in Botany Science in the pay scale  of  2200-4000  are  hereby  appointed  on probation period of two years on the same dates with effect from the dates mentioned against their names and their earlier services would be counted towards this probation period and they are hereby regularized on the said post and in the same pay scale.   However,  their  seniority  would  be determined later on.

Sr. Name and designation Date of   Details of No. of Officer who has regulari- vacancies

Been regularized. sed

1-20 XX XX         XX

21. Shri Madan Mohan       1.7.1983  Regularised Joshi, Lecturer in    on the post Botany Science    w.e.f 1.7.1983

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  Vide G.O.    No.2058/15     84-11-12-46/81    Dt. 1.8.1984”

8. The State of Uttarakhand then known as State of Uttaranchal has

been curved out from the State of Uttar Pradesh.  In the seniority list, the

first  respondent  was placed at  serial  number 137 whereas Mrs.  Savita

(Mohan) Dhondyal was placed at serial No.102.  Objections were filed to

the  said  seniority  list  wherefor  recommendations  were  made  by  the

Directorate of Higher Education in the following terms :

“Dr. Joshi was appointed on ad hoc basis and pursuant to his appointment he joined Almora College on 22nd September, 1975.  Later on his services  were  approved  by  the  Director  of Education  (Higher  Education),  Uttar  Pradesh, Allahabad on 27th March, 1976 with effect from the date of his joining the post.  His name in the seniority list would have been mentioned at Sr. No.102  after  the  name  of  Smt.  Deveshwari Bisht  on  the  basis  of  his  order  of  first appointment.  But it would have been possible if his name would have been considered in the order of regularization dated 22nd May, 1980.  It appears that his name was not included in the said order dated 22nd May, 1980 although Shri Joshi was fully eligible for being considered in the said order dated 22nd May, 1980 according to the Regularisation Rules of 1979.  Therefore, if  the  Government  so  wishes,  his  order  of regularization dated 11th July, 1980 should  be amended to the above effect.”

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9. A writ petition was filed by the first respondent before the High

Court  of  Uttaranchal  at  Nainital  which  by  reason  of  the  impugned

judgment has been allowed.

10. Mr.  Gopal  Subramanium,  learned  Additional  Solicitor  General

appearing  on  behalf  of  the  State,  would  submit  that  the  High  Court

committed a serious error insofar as it failed to take into consideration

that  the  State  Uttaranchal,  having  framed  the  Uttaranchal  Higher

Education (Group A) Service Rules, was bound by the provisions thereof

and in that view of the matter, the High Court committed a serious error

insofar as it  failed to take into consideration the effect of the statutory

rules governing the field in their proper perspectives.

11. Mr. Garg, learned counsel appearing on behalf of the respondent,

on the other hand, would contend that as the instant case is governed by

the  Rules  which  were  applicable  prior  to  coming  into  force  of  2003

Rules, the High Court has not committed any illegality or the impugned

judgment is unassailable.  

12. It was contended that in the writ petition it was not necessary for

the first respondent even to implead the said Savita (Mohan) Dhondyal

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and others as party respondents,  as no relief had been claimed against

them.  Reliance has been placed on  A. Janardhana v.  Union of India &

Ors. [(1983) 3 SCC 601].   

13. Services  of  the first  respondent  as  also  several  others  including

Savita (Mohan) Dhondyal, as noticed herein before were regularized in

terms of the provisions of the U.P. Regularisation Rules.

Indisputably, services of those whose names appear above the first

respondent, services of those were regularized w.e.f 22.5.1980 whereas

that of the first respondent was regularized from 11.7.1980.  The order

dated 11.7.1980 categorically stated :

“Under Rule 4(3) of Uttar Pradesh Regularisation of  Ad hoc  Appointment  within  the  purview of Public  Service  Commission  Rules  1979 framed vide notification No.19/8/75 (1) dated 14-5-1979 by  the  Personnel  Department,  on  the recommendation  of  the  Selection  Committee constituted  for  regularization  of  Lecturers appointed  on  ad  hoc  basis  in  the  pay  scale  of Rs.700-1600  prior  to  1-1-1977  in  the  U.P. Government Inter Colleges under the Directorate of  Higher Education  and in  exercise  of  powers under  Rule  5  of  the  aforesaid  Rules  the competent  authority  is  pleased  to  regularize  ad hoc appointment  of  Lecturers  mentioned  in  the Schedule-1  w.e.f.  the  date  of  issuance  of  this order  and  they  are  given  regular  temporary appointment  on  the  post  of  Lecturer  w.e.f. 11.7.1980.

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The seniority of these Lecturers will be as per the serial  given  in  the  schedule  and  they  will  be junior  to  the  regularly  selected  Lecturers  who have  been  appointed  prior  to  the  regular appointment of these Lecturers.”

The  said  direction  has  not  been  set  aside  by  the  High  Court.

Validity thereof may be in question in the writ petition.

14. The question as to which Rule would govern the inter se seniority

amongst the parties has not been determined.  Rule was framed by the

State of Uttaranchal in 2003 in terms of the proviso appended to Article

309 of the Constitution of India.   

Rule  3(k)  defines  ‘substantive  appointment’  to  mean  an

appointment, not being an ad hoc appointment, on a post in the cadre of

the Service made after selection in accordance with the rules and if there

are  no rules  in  accordance with the procedure prescribed for  the  time

being by executive instruction issued by the Government.

15. Rule  20  of  the  said  Rules  lays  down  the  mode  of  determining

seniority in the following terms :

“20. Seniority :

(1) Except  as  hereinafter  provided,  the seniority  of  persons  in  any category  of  posts

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shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in that case it will mean the date of issue of order :

Provided that –

(a) if  the  appointment  order  specified  a particular  back  date  with  effect  from which  a  person  is  appointed, substantively, that date will be deemed to be  the  date  of  order  of  substantive appointment  and  in  other  cases  it  will mean the date of issue of the order;

(b) 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 (2) of rule 17.

(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 :

Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when the post 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.”

The said Rule also contains a power of relaxation being Rule 25

which is to the following effect :

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“25. Relaxation of the Conditions of service :

Where  the  State  Government  is  satisfied  that the  operation  of  any  rule  regulating  the conditions of Service of a person appointed to the  Service  causes  undue  hardship  in  any particular  case,  it  may  notwithstanding  any thing  contained  in  the  rules  applicable  to  the case,  by  order  dispense  with  or  relax  the requirements  of  that  rule  to  such  extent  and subject  to such conditions,  as it  may consider necessary,  for  dealing  with  the  case  in  a  just and equitable manner :

Provided that where a rule has been framed in consultation  with  the  Commission  that  body shall  be  consulted  before  the  requirements  of the rule are dispensed with or relaxed.”

16. The question as to whether the said Rules will have retrospective

effect  or  in  any event  will  govern  the  cases  of  the  parties,  thus,  was

required to be determined by the High Court.

17. The High Court, in its impugned judgment, proceeded on the basis

as to what would constitute a substantive appointment.  The decisions of

this Court, whereupon strong reliance has been placed by the High Court

in arriving at its conclusion may not be of much significance but what is

significant is that in the writ petition even Savita (Mohan) Dhondyal and

others  who  lose  their  seniority  in  the  event  writ  petition  was  to  be

allowed, were not  impleaded as parties.   They, in our opinion,  should

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have been impleaded as parties in the writ application.  Savita (Mohan)

Dhondyal and others, if the writ petition is allowed, would suffer civil

consequences.  Inter se seniority may not be a fundamental right, but is a

civil right.  [See State of UP & Anr. v.  Dinkar Sinha [2007 (7) SCALE

8].   The  respective  rights  of  seniority  of  the  parties,  thus,  required

determination in their presence.    

18. A Three Judge Bench of Court in Prabodh Verma & Ors. v. State

of Uttar Pradesh & Ors. [AIR 1985 SC 167], stated the law as under :

“A  High  Court  ought  not  to  decide  a  writ petition  under Article  226 of  the  Constitution without  the  persons  who  would  be  vitally affected  by  its  judgment  being  before  it  as respondents or at least by some of them being before  it  as  respondents  in  a  representative capacity  if  their  number  is  too  large,  and, therefore, the Allahabad High Court ought not to  have proceeded to  hear  and dispose of  the Sangh’s writ petition without insisting upon the reserve pool  teachers  being made respondents to  that  writ  petition,  or at  least  some of them being  made  respondents  in  a  representative capacity, and had the petitioners refused to do so,  ought  to  have  dismissed  that  petition  for non-joinder of necessary parties.”

19. Reliance  placed  on  A.  Janardhana (supra)  by  Mr.  Garg,  in  our

opinion,  is  misplaced.   Therein,  no  relief  was  claimed  against  any

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individual.  The only relief which was claimed therein was against the

Union of India.  The question which was raised therein was a question of

interpretation.   It  was in the aforementioned situation,  this  Court  held

that all the employees were not required to be impleaded as a party.  In

that case, the case of direct recruits has not gone unrepresented.  It was

stated:

“In this case, appellant does not claim seniority over  any  particular  individual  in  the background of any particular fact controverted by that person against whom the claim is made. The contention  is  that  criteria  adopted  by the Union  Government  in  drawing  up  the impugned seniority list  are invalid  and illegal and  the  relief  is  claimed  against  the  Union Government  restraining  it  from  upsetting  or quashing the already drawn up valid list and for quashing the impugned seniority list.  Thus, the relief is claimed against the Union Government and  not  against  any  particular  individual.   In this background, we consider it unnecessary to have  all  direct  recruits  to  be  impleaded  as respondent.”

20. For  the  reasons  aforementioned,  we are  of  the  opinion  that  the

interest of justice would be subserved if the impugned judgment is set

aside and the matter is remitted to the High Court for consideration of the

matter  afresh.  In  the  writ  petition,  the  first  respondent  may  file  an

appropriate  application  for  impleading  Savita  (Mohan)  Dhondyal  and

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others as  parties  and/or  some teachers  in their  representative capacity.

The  High  Court  is  requested  to  allow  the  said  application  for

impleadment  and  determine  the  matter  in  accordance  with  law  as

expeditiously as possible, preferably within the period of 8 weeks of the

communication of this Order.

21. The appeal is disposed of accordingly.

……………..…………J. [S.B. Sinha]

               .………………….……J.        [Lokeshwar Singh Panta]

New Delhi May 13, 2008

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