# AJAY KUMAR SHUKLA AND OTHERS v. ARVIND RAI AND OTHERS

- **Citation:** [2021] 12 S.C.R. 1178
- **Court:** Supreme Court of India
- **Decided:** 2021-12-08
- **Case number:** Civil Appeal No. 5966 of 2021
- **Bench:** Dr. D.Y. Chandrachud, Vikram Nath, B.V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajay-kumar-shukla-and-others-v-arvind-rai-and-others-34792
- **Pages:** 39

## Headnote

Service Law: Seniority list - Appellants working as Junior
Engineers belonging to Mechanical and Civil Streams whereas
respondents from agricultural stream - Plea of the appellants that
in the seniority list, the department had placed the candidates of
the three lists- Agricultural, Mechanical and Civil in the same
sequence as they were received with their inter se seniority in their
respective lists, the agricultural stream on the top, thereafter
mechanical and lastly the civil stream - Writ petition by the appellant
challenging the seniority list - Single Judge quashed the seniority
lists and directed the department to draw a fresh seniority list in
accordance with Rules 1991- However, the Division Bench set aside
the order - On appeal, held: Seniority list was prepared by the
Department in contravention to the statutory provision laid down
in Rules 1991 - Appointing Authority would be bound by the
statutory rules and any violation or disregard to the statutory rules
would vitiate the seniority list - It would be arbitrary, de hors the
rules and in conflict with Arts 14 and 16 - Appointing authority
ought to have prepared a combined merit list based upon the
performance or the proficiency on the basis of the marks received
in the selection test as prepared by the Commission - Otherwise, it
would amount to denial of the right of consideration for promotion
to a more meritorious candidate - Appointing Authority erred in the
manner in which the seniority list was prepared by placing the three
select lists forwarded by the Commission on different dates one after
the other en bloc as per the date of receipt of three select lists -
Furthermore, the delay of three to four years in filing the matter
satisfactory explained; and the non-joining of all the affected junior
engineers not fatal - Thus, the order passed by the Single Judge of
the High Court upheld - Uttar Pradesh Government Servants
[2021] 12 S.C.R. 1178
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Seniority Rules, 1991 - rr. 5, 8 - Uttar Pradesh Minor Irrigation
Department Subordinate Engineering Service Rules, 2009 -
Constitution of India - Arts. 14 and 16(1).
Service Law: Promotion - Right to promotion - Held: Is not
considered to be a fundamental right but consideration for promotion
has now evolved as a fundamental right - Constitution of India -
Art. 14 and 16(1).
Jurisprudence: Service jurisprudence - Impleadment of
parties - Held: It is not essential to implead each and every one
who could be affected but if a section of such affected employees is
impleaded then the interest of all is represented and protected -
Impleadment of a few of the affected employees would be sufficient
compliance of the principle of joinder of parties and they could
defend the interest of all affected persons in their representative
capacity - Non-joining of all the parties not fatal.
Allowing the appeals, the Court
HELD: 1.1 There was one selection for the three streams
i.e. Agricultural, Mechanical and Civil. There is one cadre of
Junior Engineers in the Minor Irrigation Department and
therefore, there has to be one seniority list of Junior Engineers.
[Para 18][1201-B-C]
1.2 The Appointing Authority, in fact, committed an error
in the manner in which the seniority list was prepared by placing
the three select lists forwarded by the Commission on different
dates one after the other en bloc as per the date of receipt of
three select lists. It is not the case either of the private
respondents, State or the Commission that appointment letters
have been issued separately as and when the select lists were
received. In fact, the appointment letters of all the three streams
were issued in October 2001, after about 10 to 11 months of the
receipt of the third list i.e. of the Civil stream in November 2000.
Apparently by an oversight, the Appointing Authority failed to
prepare the combined seniority list as required under the Uttar
Pradesh Government Servants Seniority Rules, 1991, be it Rule
5 or Rule 8 with respe

## Text

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SUPREME COURT REPORTS
[2021] 12 S.C.R.
AJAY KUMAR SHUKLA AND OTHERS
v.
ARVIND RAI AND OTHERS
(Civil Appeal No(s). 5966 of 2021)
DECEMBER 08, 2021
[DR. D.Y. CHANDRACHUD, VIKRAM NATH AND
B.V. NAGARATHNA, JJ.]
Service Law: Seniority list - Appellants working as Junior
Engineers belonging to Mechanical and Civil Streams whereas
respondents from agricultural stream - Plea of the appellants that
in the seniority list, the department had placed the candidates of
the three lists- Agricultural, Mechanical and Civil in the same
sequence as they were received with their inter se seniority in their
respective lists, the agricultural stream on the top, thereafter
mechanical and lastly the civil stream - Writ petition by the appellant
challenging the seniority list - Single Judge quashed the seniority
lists and directed the department to draw a fresh seniority list in
accordance with Rules 1991- However, the Division Bench set aside
the order - On appeal, held: Seniority list was prepared by the
Department in contravention to the statutory provision laid down
in Rules 1991 - Appointing Authority would be bound by the
statutory rules and any violation or disregard to the statutory rules
would vitiate the seniority list - It would be arbitrary, de hors the
rules and in conflict with Arts 14 and 16 - Appointing authority
ought to have prepared a combined merit list based upon the
performance or the proficiency on the basis of the marks received
in the selection test as prepared by the Commission - Otherwise, it
would amount to denial of the right of consideration for promotion
to a more meritorious candidate - Appointing Authority erred in the
manner in which the seniority list was prepared by placing the three
select lists forwarded by the Commission on different dates one after
the other en bloc as per the date of receipt of three select lists -
Furthermore, the delay of three to four years in filing the matter
satisfactory explained; and the non-joining of all the affected junior
engineers not fatal - Thus, the order passed by the Single Judge of
the High Court upheld - Uttar Pradesh Government Servants
[2021] 12 S.C.R. 1178
1178
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Seniority Rules, 1991 - rr. 5, 8 - Uttar Pradesh Minor Irrigation
Department Subordinate Engineering Service Rules, 2009 -
Constitution of India - Arts. 14 and 16(1).
Service Law: Promotion - Right to promotion - Held: Is not
considered to be a fundamental right but consideration for promotion
has now evolved as a fundamental right - Constitution of India -
Art. 14 and 16(1).
Jurisprudence: Service jurisprudence - Impleadment of
parties - Held: It is not essential to implead each and every one
who could be affected but if a section of such affected employees is
impleaded then the interest of all is represented and protected -
Impleadment of a few of the affected employees would be sufficient
compliance of the principle of joinder of parties and they could
defend the interest of all affected persons in their representative
capacity - Non-joining of all the parties not fatal.
Allowing the appeals, the Court
HELD: 1.1 There was one selection for the three streams
i.e. Agricultural, Mechanical and Civil. There is one cadre of
Junior Engineers in the Minor Irrigation Department and
therefore, there has to be one seniority list of Junior Engineers.
[Para 18][1201-B-C]
1.2 The Appointing Authority, in fact, committed an error
in the manner in which the seniority list was prepared by placing
the three select lists forwarded by the Commission on different
dates one after the other en bloc as per the date of receipt of
three select lists. It is not the case either of the private
respondents, State or the Commission that appointment letters
have been issued separately as and when the select lists were
received. In fact, the appointment letters of all the three streams
were issued in October 2001, after about 10 to 11 months of the
receipt of the third list i.e. of the Civil stream in November 2000.
Apparently by an oversight, the Appointing Authority failed to
prepare the combined seniority list as required under the Uttar
Pradesh Government Servants Seniority Rules, 1991, be it Rule
5 or Rule 8 with respect to the selection of the appellants and
private-respondents. [Para 20][1203-C-E]
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1.3 In October, 2001, when the appointment letters were
issued it carried a stipulation that the seniority would be
determined later on as per rules. It is an admitted position that
before 2006, the seniority list of the appellants was not notified.
In March, 2006, when the tentative list was published, it did not
mention about the three select lists nor was this fact mentioned
when the final seniority list was published on 05.09.2006. Rather,
it clearly mentioned that the seniority list had been prepared on
the basis of merit. This was in fact an incorrect statement. The
seniority list had not been prepared on the basis of merit but on
the basis of receipt of the three separate select lists one after
the other. As the Agricultural list was received first on 28.09.1999,
all the selected candidates of agricultural stream were en bloc
placed on the top, thereafter the Mechanical list was received on
06.01.2000, they were placed below the Agricultural stream and
lastly, the Civil stream list was received on 07.11.2000, they were
placed at the end. [Para 25][1205-A-D]
1.4 Rules 5 and 8 of Rules 1991 clearly mention that there
shall be one list for one selection of direct recruits. Creating
three separate lists for one selection was contrary to the
provisions contained in Rules 5 and 8 of Rules 1991. Rules 2009
clearly mention that seniority would be determined and prepared
as per 1991 Rules. Rule 5 of Rules 1991, dealt with the selections
made only through direct recruitment whereas Rule 8 thereof
dealt with the situation where seniority list is to be prepared of
both the direct recruits and the promotees. However, the
principles underlined in both these Rules are the same that there
has to be one list for one selection, as is clear from Rule 8(2)(a)
and Rule 5 of Rules 1991. [Para 26][1205-D-F]
1.5 Once it is established that the seniority list was prepared
in contravention to the statutory provisions laid down in Rules
1991, the seniority list could be interfered with. The Appointing
Authority would be bound by the statutory rules and any violation
or disregard to the statutory rules would vitiate the seniority list.
The same would be arbitrary, de hors the rules and in conflict
with Articles 14 and 16 of the Constitution. The only exception
would be where there is unreasonable delay which is unexplained.
[Para 27][1205-F-G]
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1.6 In the facts of the instant case, it is found from the final
seniority list of 05.09.2006 that it nowhere mentioned that there
were three separate lists of separate streams and that they were
received on different dates. On the contrary, there was a recital
therein and specific averment to the effect that the list had been
prepared on the basis of merit. Thus, it cannot be said that the
appellants were aware of the three separate select lists dispatched
by the Commission on three different dates at the time of
publication of final list dated 05.09.2006. [Para 28][1206-A-C]
1.7 The appellants had no occasion to know about the three
separate lists either at the time they were dispatched by the
Commission or at any time thereafter as the appointment letters
of all selected candidates of all the three streams were issued
simultaneously under Office Order dated 08.10.2001. The order
finalizing the seniority list of 05.09.2006 also nowhere mentioned
that three separate lists of three streams were received from the
Commission and placed en bloc as received one after the other.
[Para 29][1206-C-D]
1.8 At the time of notifying the tentative list on 29.12.2009,
it was not stated anywhere that there were three separate lists
received on three different dates. As such it could not be alleged
that the appellants even at that stage did not file objections
regarding preparation of common seniority list. It was only when
the final seniority list was published on 05.03.2010 and in the
order finalizing the list, it was mentioned by the department that
there were three separate lists received on three separate dates
and in that sequence the combined seniority was prepared. Thus,
it is for the first-time that appellants came to know of the
error on publication of the final seniority list on 05.03.2010.
[Paras 30][1206-E-F]
1.9 The respondents have not been able to show any material
which could clearly indicate that the appellants had knowledge of
three separate lists and the preparation of the seniority list on its
basis. [Para 31][1206-F-G]
1.10 After coming of Rules 2009, fresh exercise was
undertaken for preparation of seniority list. A tentative list was
notified by the Office Order dated 29.12.2009. This Office Order
mentions that the seniority list has to be prepared according to
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1991 Rules. While dealing with the finalization of this tentative
list, vide office order dated 05.03.2010, there is reference to
disposal of an objection by MC and MK in which they had
apparently sought clarification regarding the requisition send to
the Commission and other related aspects. In paragraph 11 of
the Office Order, it is mentioned that the Commission had
forwarded the three lists of the Agriculture, Mechanical and Civil
streams separately on 06.01.2000, 27.01.2000 and 07.11.2000
respectively. It further mentioned that it was in that sequence
i.e. the date of receiving that the combined seniority was assessed.
Thus, again the seniority list was finalized in the same sequence
as the three lists have been received and in that order. It is
thereafter that the representations were made that the seniority
list of the direct recruits of 2001 was wrongly prepared contrary
to the Rules, however, when no action was taken, RN and fourteen
others approached the High Court which was within a period of
two to two and half years and till such time they had been pursuing
their representation after office order dated 05.03.2010. Thus, it
is clear that in the first contingency or in the second contingency,
the appellants cannot be found at fault. The Division Bench
committed an error in holding that the claim lodged by the
appellant suffered from delay and laches. [Para 34][1208-A-E]
1.11 The plea to defend the seniority list prepared contrary
to the statutory provisions on the ground of delay would be a
difficult proposition. Apart from the submission of the appellants
that there is no delay as they came to know of the three separate
lists only in March, 2010, even if it is assumed that there was
some delay and a fresh seniority list was being prepared in 20092010 again contrary to the provisions of statutory rules, such
seniority list cannot be sustained or defended on the ground of
delay of five years. [Para 35][1208-F-G]
1.12 The next promotion of Junior Engineers in the higher
grade is to the post of Assistant Engineer. In the cadre of Assistant
Engineer, there are no separate streams but only one cadre of
Assistant Engineers. It is the seniority list of the cadre of Junior
Engineers which would be the feeder cadre for the post of
Assistant Engineers. The Junior Engineers of Agricultural stream
of the selection of the year 2001, would have direct march over
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the Junior Engineers selected in the same selection of the
Mechanical and Civil streams, even though the overall merit of
some or many of Agricultural stream Junior Engineers could be
lower than some or many of the Engineers of the Mechanical and
Civil streams. The appointing authority ought to have prepared
a combined merit list based upon the performance or the
proficiency on the basis of the marks received in the selection
test as prepared by the Commission. Otherwise, it would amount
to denial of the right of consideration for promotion to a more
meritorious candidate as against a candidate having lesser merit.
Right to promotion is not considered to be a fundamental right
but consideration for promotion has now been evolved as a
fundamental right. [Para 36][1208-G-H; 1209-A-C]
Director, Lift Irrigation Corporation Ltd. and Others
vs. Pravat Kiran Mohanty and Others (1991) 2 SCC
295:[1991] 1 SCR 341; Ajit Singh vs. State of Punjab
(1999) 7 SCC 209:[1999] 2 Suppl. SCR 521; Major
General H.M. Singh, VSM vs. UOI and Another (2014)
3 SCC 670:[2014] 1 SCR 270 - referred to.
1.13 If the seniority list is allowed to be sustained then the
engineers who are more meritorious in the Mechanical and Civil
streams than the Junior Engineers of the Agricultural stream
would be deprived of their right of being considered for promotion
and in fact their right would accrue only after all the Junior
Engineers of the Agricultural stream selected in the same
selection are granted promotion. For these reasons also the
seniority list in question must go. [Para 40][1212-C-D]
1.14 The instant case is a case of preparation of seniority
list and that too in a situation where the appellants (original writ
petitioners) did not even know the marks obtained by them or
their proficiency in the examination conducted by the
Commission. The challenge was on the ground that the Rules on
the preparation of seniority list had not been followed. There
were 18 private respondents arrayed to the writ petition. The
original petitioners could not have known who all would be
affected. They had thus broadly impleaded 18 of such Junior
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Engineers who could be adversely affected. In matters relating
to service jurisprudence, time and again it has been held that it
is not essential to implead each and every one who could be
affected but if a section of such affected employees is impleaded
then the interest of all is represented and protected. In view
thereof, impleadment of a few of the affected employees would
be sufficient compliance of the principle of joinder of parties and
they could defend the interest of all affected persons in their
representative capacity. Non-joining of all the parties cannot be
held to be fatal. [Para 47][1214-G-H; 1215-A-C]
Ranjan Kumar and Others vs. State of Bihar and Others
(2014) 16 SCC 187 - distinguished.
Prabodh Verma and others vs. State of Uttar Pradesh
and others (1984) 4 SCC 251:[1985] 1 SCR 216; State
of Uttaranchal vs. Madan Mohan Joshi and others
(2008) 6 SCC 797:[2008] 8 SCR 591; Indu Shekhar
Singh and others vs. State of U.P. and others (2006) 8
SCC 129:[2006] 1 Suppl. SCR 497; Tridip Kumar
Dingal and others vs. State of West Bengal and others
(2009) 1 SCC 768:[2008] 15 SCR 194; Mukul Kumar
Tyagi and Ors. vs. The State of Uttar Pradesh and Ors.
(2020) 4 SCC 86:[2019] 16 SCR 1145 - referred to.
1.15 The Division Bench also dealt with an issue which was
totally irrelevant and alien to the adjudication of the present
appeals. In the judgment of the Division Bench there is a
reference to an issue where a party takes calculated chances of
participating in selection/appointment process and later turns
around after being unsuccessful would be hit by doctrine of
estoppel. This issue was not at all relevant. The said issue does
not arise in the present case. The appellants/original writ
petitioners had never challenged the selection process. The
challenge was only to preparation of the seniority list.
[Para 48][1215-C-E]
1.16 The Division Bench in a generalized and vague manner
recorded that the authorities relied upon by the Single Judge
were rendered in a different fact situation and were not applicable.
The Division Bench did not consider the judgments relied upon
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by the Single Judge but only made this passing remarks. The
authorities relied upon by the Single Judge were relevant and
correctly applied. [Para 49][1215-E-G]
1.17 The Division Bench proceeded to deal with the delay
stating it to be 11 years, the basis for calculation of 11 years was
that the seniority list of 2006 was challenged by way of amendment
by the appellants in the year 2017 and therefore there was a delay
of 11 years. This discussion by Division Bench also cannot be
sustained. The first seniority list was prepared in 2006. It was
not disclosed as to how the seniority list has been prepared by
treating the three separate lists independently on their merits
but not as a result of combined merit of the three lists. It was
only in 2010 that the appellants came to know of the fallacy and
soon thereafter they challenged the seniority list of 2010. Even
if, they did not challenge the seniority list of 2006, 2010 seniority
list could always be revisited, reviewed and prepared afresh, if
the same was quashed. The appellants could not have been at
any loss even if they had not challenged the 2006 seniority list.
[Para 50][1215-G-H; 1216-A-B]
1.18 The reasoning given regarding issue of single selection
is also not sustainable in view of Rules 1991 as also Rules 2009.
[Para 51][1216-B-C]
1.19 The seniority inter se of direct recruits to one selection
has to be one combined list based on the performance and the
marks awarded in the examination prepared either by the
Commission or the Committee, as the case may be. True, the
Single Judge, in the operative portion mentioned that a fresh
seniority list be prepared in accordance with Rule 5 and
apparently did not consider the effect of Rule 8, would not vitiate
the judgment inasmuch as the basis for preparation of the seniority
list of direct recruits was the same in both the Rules. There is
no lis inter se between direct recruits and promotees.
[Para 52][1216-D-E]
1.20 The Single Judge was right in setting aside the final
seniority list and directing the appointing authority for preparation
of fresh seniority list in accordance with Rules 1991, be it Rule 5
or Rule 8 thereof. The impugned judgment of the Division Bench
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of the High Court is set aside and that of the Single Judge is
maintained. [Paras 53, 54][1216-F-G]
Shiba Shankar Mohapatra vs. State of Orissa (2010)
12 SCC 471:[2009] 15 SCR 866; Dayaram Asanand
Gursahani vs. State of Maharashtra and others (1984)
3 SCC 36:[1984] 2 SCR 703; B.S. Bajwa and another
vs. State of Punjab and others (1998) 2 SCC 523:[1997]
6 Suppl. SCR 451; Malcom Lawrence Cecil D'Souza
vs. Union of India and others (1976) 1 SCC 599:[1975]
0 Suppl. SCR 409; R.S. Makashi and others vs. I.M.
Menon and others (1982) 1 SCC 379:[1982] 2 SCR
69 - referred to.
Case Law Reference
[2009] 15 SCR 866
referred to
Para 4(b)
[1984] 2 SCR 703
referred to
Para 22
[1997] 6 Suppl. SCR 451
referred to
Para 22
[1975] 0 Suppl. SCR 409
referred to
Para 22
[1982] 2 SCR 69
referred to
Para 22
[1991] 1 SCR 341
referred to
Para 37
[1999] 2 Suppl. SCR 521
referred to
Para 38
[2014] 1 SCR 270
referred to
Para 39
(2014) 16 SCC 187
distinguished
Para 41
[1985] 1 SCR 216
referred to
Para 42
[2008] 8 SCR 591
referred to
Para 43
[2006] 1 Suppl. SCR 497
referred to
Para 44
[2008] 15 SCR 194
referred to
Para 45
[2019] 16 SCR 1145
referred to
Para 46
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5966
of 2021.
From the Judgment and Order dated 04.12.2019 of the High Court
of Judicature at Allahabad in Special Appeal No. 897 of 2019.
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With
C.A. Nos. 5969, 5967, 5968 of 2021
Siddhartha Dave, Sr. Adv., Ashok Kumar Singh, Shantwanu Singh,
Ms. Pragya Singh, Abhishek Khare, Ms. Preetika Dwivedi, Utkarsh
Srivastava, Mrs. Revathy Raghavan Advs. for the Appellants.
Gopal Sankaranarayanan, Sr. Adv., Rohit Amit Sthalekar, Sankalp
Narain, Ms. Ishita, Parmanand Pandey, Ajay Kumar Singh, Utkarsh
Pandey, Utkarsh Srivastava, Ms. Ila Shikhar Sheel, Mrs. Nanita Sharma,
Siddharth, Amit Kumar Agrawal, Ashish Choudhury, Navin Kumar
Sehrawat, Vishnu Kant, Advs. for the Respondents.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
1. The present set of appeals preferred by the original writ
petitioners (before the High Court) assails the correctness of the
judgement and order dated 04.12.2019 passed by Division Bench of the
Allahabad High Court in Special Appeal No. 819 of 2019, in between
Rajesh Kumar Singh and Another vs. Rajeev Nain Upadhyay and
24 Others whereby the Division Bench allowed the appeal, set aside
the judgment and order of the learned Single Judge and dismissed the
writ petition.
Background:
2. The appellants, who were working as Junior Engineers in the
Department of Minor Irrigation, State of Uttar Pradesh, aggrieved by
the final seniority list dated 05.03.2010 challenged the same by way of
Writ Petition No. 53123 of 2012, being Rajeev Nain Upadhyay and
Others vs. State of Uttar Pradesh and Others. The appellants
(Original Writ Petitioners) belong to the Mechanical and Civil Streams
whereas Private Respondents are from the Agriculture Stream.
3. Originally when the petition was filed, challenge was only to
the seniority list published on 05.03.2010. However, during the pendency
of the petition by way of amendment, challenge was also made to the
earlier seniority list published on 05.09.2006. The said amendment was
allowed. Thus, the reliefs claimed post amendment, read as follows:
"Prayer
Original prayer in the writ petition before the high court:
AJAY KUMAR SHUKLA AND OTHERS v. ARVIND RAI AND
OTHERS
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It is, therefore, most respectfully prayed that this Hon'ble court
may be pleased to issue:
i. A writ, order or direction in the nature of certiorari quashing the
office order dated 05.03.2010 issued by the Chief Engineer (Minor
Irrigation), U.P. Lucknow and the seniority list appended thereto
(Annexure 12 to the writ petition).
ii. A writ, order or direction of a suitable nature commanding the
respondents to prepare and publish a revised seniority list in
conformity with UP Government Servant Seniority Rule 1998
within a period to be specified by this Hon'ble court.
iii. A writ, order or direction of a suitable nature restraining the
respondents from taking any action on the basis of impugned office
order.
iv. A writ, order or direction in the nature of which this Hon'ble
court may deem fit and proper under the circumstances of the
case.
v. Award cost to the humble petitioner throughout of the present
writ petition.
Prayer added subsequently to the original prayer in writ petition
before the High Court:
That the following prayers may be added after prayer no (i) as
prayer no. i-a) & i-b)
i-a) Certiorari quashing for the record to quash the seniority list
dated 5.9.2006.
i·b) mandamus restraining the respondents from giving any benefits
to the respondents on the basis of the seniority list dated 5.9.2006."
4. The learned Single Judge, vide judgement and order dated
14.05.2019, allowed the writ petition, quashed the seniority lists dated
05.09.2006 and 05.03.2010 and further issued a writ of mandamus
directing the respondents to draw a fresh seniority list in accordance
with Rule 5 of the Uttar Pradesh Government Servants Seniority
Rules, 1991 (for short "Rules 1991"). It was also provided that any
promotions made during the pendency of the writ petitions would not be
interfered with but would remain subject to the fresh seniority list to be
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prepared in accordance with Rule 5 of Rules 1991. Learned Single
Judge recorded the following findings to arrive at the above conclusions:
a) After examining the relevant rules and also the scheme of
determination of the seniority, it was recorded that the existing
seniority list would not only be prejudicial to the interest of junior
engineers belonging to civil and mechanical branch but would also
affect their chances of promotion. It would also be generating
heart burn, adversely affecting the administration and working of
the entire department. Paragraph 21 of the judgment of learned
Single Judge is reproduced below:
"21. The scenario noticed above would not only be prejudicial
to the interests of Junior Engineers belonging to Civil· and
Mechanical Engineering Stream as it would affect their chances
of promotion and generate heart-burning but would adversely
affect the requirement of work to be managed by the
department also."
b) The objection taken by the respondents to the original writ
petition regarding the petition suffering from delay and laches,
was elaborately dealt with. The law on the point was dealt with in
abundance and thereafter it was recorded that a delay of three to
four years, in a matter relating to seniority dispute would not be
fatal. Reliance was placed upon the judgment of Shiba Shankar
Mohapatra vs. State of Orissa1. It was held that in the present
case, there was no delay or laches.
c) It was also recorded that once there was a serious challenge to
the determination of seniority on the ground that the seniority list
had been prepared de hors the rules, writ petition was required to
be considered on merits.
d) Three different lists were forwarded by the Commission relating
to the same selection and therefore, a common inter se merit of
the candidates from the three lists ought to have been prepared
and accordingly seniority ought to have been fixed.
e) The Competent Authority and the State committed a serious
error of law in determining the seniority list merely on the basis of
the date of receipt of the three select lists arising out of the same
selection. Such an action could neither be supported in law or on
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facts nor the task of determining seniority be left to such a fortuitous
circumstance.
f) The date of dispatch of select list, by no stretch of imagination
could be a determining factor for preparing the seniority list. The
Competent Authority and the State have acted contrary to the
specific provisions contained in Rules 1991. As such their action
is arbitrary and also against the constitutional spirit of equal
opportunity in matters of public employment.
5. The judgment of the learned Single Judge was assailed by way
of intra court appeal registered as Special Appeal No. 819 of 2019. The
Division Bench, vide judgment and order dated 04.12.2019, allowed the
appeal, set aside the judgment of the learned Single Judge and dismissed
the writ petition. This judgment has given rise to the present set of
appeals. The Division Bench recorded the following findings to arrive
at the above conclusions:
a) There was extraordinary delay on the part of the original writ
petitioners in approaching the Court inasmuch as the seniority list
of 2006 which had formed the basis of the 2009 seniority list, was
not challenged within a reasonable time.
b) The original writ petitioners having not challenged the final
seniority list dated 05.09.2006 principally accepted the same as
such their claim would be barred by principle of acquiescence.
c) All the affected Junior Engineers having not been impleaded
would be fatal on the principle of non-joinder of necessary parties.
d) The appellants having participated in selection/appointment
process, later on, cannot challenge the process as such action
would be hit by doctrine of estoppel and acquiescence.
e) The learned Single Judge was not right in directing for
preparation of the seniority list in accordance with Rule 5 of Rules
1991 as it would be Rule 8 which would be applicable and not
Rule 5.
Facts:
6. The factual matrix relevant for adjudication of this set of appeals
are:
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a) The Chief Engineer, Department of Minor Irrigation send a
requisition dated 18.06.1998 to the Uttar Pradesh Public Service
Commission (for short "the Commission") requesting for
recruitment of 206 posts of Junior Engineers in the Department
of Minor Irrigation. These posts were further divided inter se
between agriculture, mechanical and civil streams in the ratio of
50:30:20 respectively.
b) The Commission issued an Advertisement No. 3 of 1998-1999,
inviting applications for the post of Junior Engineers. The
examination process was in two tiers; a screening test which was
held on 18.10.1998 and after qualifying this screening test, there
was an interview to be conducted by the Commission. The result
of the screening test was declared on 06.01.1999 and thereafter,
interviews were conducted by the Commission from 07.06.1999
to 26.06.1999 with respect to candidates who were holding a
Diploma in Agricultural Engineering. Insofar as candidates holding
Diploma in Mechanical Engineering were concerned, their
interviews were held between 24.06.1999 to 02.07.1999 and lastly
for candidates holding Diploma in Civil Engineering, their interviews
were held between 07.07.1999 to 22.12.1999. After finalising the
results, the Commission forwarded three separate select lists to
the Minor Irrigation Department of the State Government, as
follows:
i) On 28.09.1999, the select list of candidates pertaining to
Agricultural Engineering;
ii) On 06.01.2000, the select list of candidates pertaining to
Mechanical Engineering and,
iii) Lastly on 07.11.2000, the select list of candidates pertaining
to Civil Engineering.
Note: There is some discrepancy regarding the dates of the three
lists being forwarded to the department. The Commission, in its
affidavits filed, has given different dates. However, the fact
remains that the sequence of sending the lists of three different
streams remains the same i.e. Agriculture, Mechanical and Civil
in that order. In one of the affidavits, the three dates are
06.01.2000, 27.01.2000 and 07.11.2000 for Agriculture,
Mechanical and Civil Junior Engineers. In another affidavit it is
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28.09.1999, 06.01.2000 and 07.11.2000 in the same order.
Hereinafter we have dealt these dates as 28.09.1999, 06.01.2000
and 07.11.2000 respectively.
c) Based upon the above three select lists forwarded by the
Commission, appointment letters were issued on 08.10.2001. The
appointment letter clearly indicated that the issue regarding seniority
would be decided later on. Pursuant to the appointment letters
dated 08.10.2001, the petitioner and private respondents joined.
d) In 2006, a tentative seniority list was published vide office order
dated 17.03.2006 with respect to all the Junior Engineers appointed
after 01.01.1989. Later on, vide office order dated 05.09.2006, a
final seniority list was published. The last sentence of the said
office order reads that the seniority of the candidates selected by
the Commission has been kept in their serial of merit.
e) The department took a fresh exercise of preparing the seniority
list in 2009 as for the first time Rules relating to Junior Engineers
of the Minor Irrigation Department were framed. Reference to
these Rules would be made a little later.
f)Accordingly, a provisional seniority list was published vide office
order dated 29.12.2009 inviting objections. The objections received
were considered and vide office order dated 05.03.2010, a final
seniority list was published. In the latter part of paragraph 11 of
the office order dated 05.03.2010, reference was made that the
Commission had sent three separate lists i.e. of Agricultural stream
on 28.09.1999, Mechanical stream on 06.01.2000 and Civil stream
on 07.11.2000. The department had placed the candidates of the
three lists in the same sequence as they were received with their
inter se seniority in their respective lists. For example, if there
were 30 candidates in the Agricultural stream, all those candidates
were placed on top at serial nos. 1 to 30 in the same order as it
was received, if 20 candidates were in the Mechanical list then
they were placed en bloc in the same serial as received from the
Commission from serial nos. 31 to 50 and, if there were 50 in the
Civil stream, they were placed below Mechanical with serial
numbers 51 to 100 again in the same sequence as forwarded by
the Commission.
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g) The appellants came to know of this mode of preparation of
the seniority list only after the publication of the final list on
05.03.2010 as prior to it they were under the bona fide belief that
department had prepared seniority list inter se between all three
streams as per the selection and result conveyed by the
Commission. They were thus compelled to make representations
to correct the seniority list by considering the inter se merit of all
the three streams i.e. Agricultural, Mechanical and Civil on the
basis of the marks obtained in their examinations and forwarded
by the Commission rather than preparing the seniority list in the
order of receipt of the select list of the three streams. When no
heed was paid to their representations, the appellants approached
the High Court by way of Writ Petition No. 53123 of 2012.
h) As already recorded above, the Single Judge allowed the writ
petition whereas the Division Bench dismissed the writ petition
giving rise to the present set of appeals.
Statutory Provisions: Rules
7. Before we proceed further, a broad outline of the relevant rules
applicable for preparation of seniority may be referred to. First and
foremost and most relevant is Rules 1991 framed under Article 309 of
the Constitution. This was in existence at the time when the selection of
the appellants and respondents was made in 1998-1999. Part II of the
said Rules deals with the determination of the seniority. Rule 5 thereof
provides for seniority where appointments are made only by direct
recruitment. The said Rule is reproduced hereunder:
"5. Seniority where appointments by direct recruitment only. -
Where according to the service rules appointments are to be
made only by the direct recruitment the seniority inter se of
the persons appointed on the result of any one selection, shall
be the same as it is shown in the merit list prepared by the
Commission or the Committee, as the case may be :
Provided that a candidate recruited 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 :
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Provided further that the persons appointed on the result of
a subsequent selection shall be junior to the persons appointed
on the result of a previous selection.
Explanation. - Where in the same year, separate selections
for regular and emergency recruitment, are made, the selection
for regular recruitment shall be deemed to be the previous
selection."
8. A plain reading of the above provision stipulates that inter se
seniority of the persons appointed as a result of ONE SELECTION
would be on the basis of the merit list prepared by the Commission or
the Committee, as the case may be. The Commission means the Uttar
Pradesh Public Service Commission and the Committee means the
Committee constituted to make selections for appointment. In the present
case, it was the Commission which had made the selections.
9. Rule 8 of Rules 1991 provides for preparation of seniority list
where appointments were made both by promotion and direct recruitment.
The said Rule reads as under:
"8. Seniority where appointments by promotion and direct
recruitment. - (1) Where according to the service rules
appointments are made both by promotion and by direct
recruitment, the seniority of persons appointed shall, subject
to the provisions of the following sub-rules, be determined
from the date of the order of their substantive appointments,
and if two or more persons are appointed together, in the
order in which their names are arranged in the appointment
order:
Provided that if the appointment order specifies a particular
back date, with effect from which a person is substantively
appointed, that date will be deemed to be the date of order of
substantive appointment and, in other cases, it will mean of
issuance of the order:
Provided further that a candidate recruited 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.
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(2) The seniority inter se of persons appointed on the result
of any one selection-
(a)
through direct recruitment, shall be the same as it is
shown in the merit list prepared by the Commission
or by the Committee, as the case may be;
(b)
by promotion, shall be as determined in accordance
with the principles laid down in Rule 6 or Rule 7, as
the case may be, according as the promotion are to
be made from a single feeding cadre or several
feeding cadres.
(3) Where appointments are made both by promotion and direct
recruitment on the result of any one selection the seniority of
promotees vis-a-vis direct recruits shall be determined in a
cyclic order (the first being a promotee) so far as may be, in
accordance with the quota prescribed for the two sources.
Illustrations
(1) Where the quota of promotees and direct recruits is in the
proportion of 1 : 1 the seniority shall be in the following
orderFirst
...
Promotee
Second
...
Direct recruits
and so on.
(2) Where the said quota is in the proportion of 1 : 3 the
seniority shall be in the following orderFirst
... Promotee
Second to Fourth
... Direct recruits
Fifth
... Promotee
Sixth to eight
... Direct recruits
and so on:
Provided that-
(i) where appointment from any source are made in excess of
the prescribed quota, the persons appointed in excess of quota
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shall be pushed down, for seniority, to subsequent year or
years in which there are vacancies in accordance with the
quota;
(ii) where appointments from any source fall short of the
prescribed quota and appointment against such unfilled
vacancies are made in subsequent year or years, the persons
so appointed shall not get seniority of any earlier year but
shall get the seniority of the year in which their appointments,
are made, so however, that their names shall be placed at the
top followed by the names, in the cyclic order of the other
appointees;
(iii) where, in accordance with the service rules the unfilled
vacancies from any source could, in the circumstances
mentioned in the relevant service rules be filled from the other
source and appointment in excess of quota are so made, the
persons so appointed shall get the seniority of that very year
as if they are appointed against the vacancies of their quota."
10. The above Rule is pressed into service where a combined list
of direct recruits and promotees is to be prepared. However, even this
Rule clearly provides in sub-Rule 2(a) that the seniority inter se of persons
appointed on the result of any ONE SELECTION through direct
recruitment shall be the same as it is shown in the merit list prepared by
the Commission or by the Committee, as the case may be. The language
used and the manner provided is identical to Rule 5 where only seniority
list of direct recruits is dealt with.
11. Part III of Rules 1991 deals with the preparation of seniority
list.