# INDU SHEKHAR SINGH AND ORS v. STATE OF U.P. AND ORS

- **Citation:** [2006] Supp. 1 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 2006-04-28
- **Case number:** Civil Appeal No. 6960 of2005
- **Bench:** S.B. Sinha, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indu-shekhar-singh-and-ors-v-state-of-u-p-and-ors-21329
- **Pages:** 31

## Headnote

B
Uttar Pradesh Urban Planning and Development Act, 1973:
Section 5-A (2)-Respondents, employees of U.P. Jal Nigam, on C
deputation to the Development Authorities-Options vis-a-vis their absorption
in the authorized centralized service stipulating condition that their past
services rendered in U.P. Jal Nigam would not be reckoned for the purpose
of determination of seniority and they would be placed below the officers
who had been appointed on regular basis in centralized service after their
absorption-ca/led for-Respondents resigned from their services from UP. D
Jal Nigam-Whether benefit of past service available towards reckoning
seniority-Held, on facts, not entitled to benefit of past services rendered in
their parent department.
Respondent No. 2 Respondent No. 3 Respondent No. 4 and the intervener
herein (now Respondent No. 6) employees ofU.P. Jal Nigam were deputed to E
Ghaziabad Development Authority on different dates. U.P. Jal Nigam,
admittedly, is to and has never been a development authority. The employees
on deputation to the development authorities from U.P. Jal Nigam, therefore,
could not have been absorbed in the centralized services in terms of Subsection (2) of Section 5-A of the Uttar Pradesh Urban Planning and p
Development Act, 1973. Options were, however, called for from the officers
ofU.P. Jal Nigam on deputation on various dates by the State ofU.P. By various
letters, they were asked to communicate their acceptance stating as to whether
they would like to be absorbed in the authorized centra.lized service subject
to the conditions specified therein, e.g., their past services rendered in U.P.
Jal Nigam would not be reckoned for the purpose of determination of seniority G
and they would be placed below the officers who had been appointed on regular
basis in centralized service after their absorption. The Respondents,
admittedly, resigned from their services from U.P. Jal Nigam. No option,
however, was given to Respondent Nos. 3 and 6. They, however, presumably
497
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498
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A opted on their own for their absorption in the authorized centralised services
of the development authorities. The State issued letters of absorption, so far
as Respondent Nc.s.2 and 3 are concerned on 18.3.1994 and so far as
Respondent Nos. 4 and 6 (the intervener) are concerned on 6.4.1987.
Appellants were appointed in various development authorities in the year 1984
or before. In view of Rule 7 of the Uttar Pradesh Development Authorities
B Rules, 1985, the Appellants were placed above Respondent Nos. 2, 3, 4 and 6
in the seniority list. Questioning the said orders, Respondent Nos. 2 to 4
herein filed a writ petition before the Allah a bad High Court praying inter alia,
for a writ/direction in the nature of mandamus commanding the respondents
to give benefit of past service to the petitioners rendered by them in the parent
C department. The High court allowed the writ petition holding that (i) refusal
on the part of the State to grant benefit of past services in U.P. Jal Nigam in
favour of the Respondents is violative of Articles 14 and 16 of the Constitution
of India; (ii) by reason of acceptance of offer to give up their past services, the
optees did not and could not have waived their fundamental right and, thus,
acceptance of the conditions for their absorption was not material; (iii) in view
D of the fact that similar benefits were granted by the court in favour of S/Shri
Brij Mohan Goel and Sushil Chandra Dwivedi, the Respondents could not have
been discriminated against. Hence this appeal.
On behalf of the Appellants it was contended that (i) the plea of
E discrimination raised by the Respondents was misconceived as the High Court
overlooked the fact that no finality has been attained in the cases of Brij Mohan
Goel and Sushi/ Chandra Dwivedi and the matters are still sub-judice; (ii) so
far as the case of Sushi! Chandra Dwivedi is concerned, the order impugned
therein was quashed on

## Text

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INDU SHEKHAR SINGH AND ORS.
A
v.
STATE OF U.P. AND ORS.
APRIL 28, 2006
[S.B. SINHA AND P.P. NAOLEKAR, JJ.]
B
Uttar Pradesh Urban Planning and Development Act, 1973:
Section 5-A (2)-Respondents, employees of U.P. Jal Nigam, on C
deputation to the Development Authorities-Options vis-a-vis their absorption
in the authorized centralized service stipulating condition that their past
services rendered in U.P. Jal Nigam would not be reckoned for the purpose
of determination of seniority and they would be placed below the officers
who had been appointed on regular basis in centralized service after their
absorption-ca/led for-Respondents resigned from their services from UP. D
Jal Nigam-Whether benefit of past service available towards reckoning
seniority-Held, on facts, not entitled to benefit of past services rendered in
their parent department.
Respondent No. 2 Respondent No. 3 Respondent No. 4 and the intervener
herein (now Respondent No. 6) employees ofU.P. Jal Nigam were deputed to E
Ghaziabad Development Authority on different dates. U.P. Jal Nigam,
admittedly, is to and has never been a development authority. The employees
on deputation to the development authorities from U.P. Jal Nigam, therefore,
could not have been absorbed in the centralized services in terms of Subsection (2) of Section 5-A of the Uttar Pradesh Urban Planning and p
Development Act, 1973. Options were, however, called for from the officers
ofU.P. Jal Nigam on deputation on various dates by the State ofU.P. By various
letters, they were asked to communicate their acceptance stating as to whether
they would like to be absorbed in the authorized centra.lized service subject
to the conditions specified therein, e.g., their past services rendered in U.P.
Jal Nigam would not be reckoned for the purpose of determination of seniority G
and they would be placed below the officers who had been appointed on regular
basis in centralized service after their absorption. The Respondents,
admittedly, resigned from their services from U.P. Jal Nigam. No option,
however, was given to Respondent Nos. 3 and 6. They, however, presumably
497
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498
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A opted on their own for their absorption in the authorized centralised services
of the development authorities. The State issued letters of absorption, so far
as Respondent Nc.s.2 and 3 are concerned on 18.3.1994 and so far as
Respondent Nos. 4 and 6 (the intervener) are concerned on 6.4.1987.
Appellants were appointed in various development authorities in the year 1984
or before. In view of Rule 7 of the Uttar Pradesh Development Authorities
B Rules, 1985, the Appellants were placed above Respondent Nos. 2, 3, 4 and 6
in the seniority list. Questioning the said orders, Respondent Nos. 2 to 4
herein filed a writ petition before the Allah a bad High Court praying inter alia,
for a writ/direction in the nature of mandamus commanding the respondents
to give benefit of past service to the petitioners rendered by them in the parent
C department. The High court allowed the writ petition holding that (i) refusal
on the part of the State to grant benefit of past services in U.P. Jal Nigam in
favour of the Respondents is violative of Articles 14 and 16 of the Constitution
of India; (ii) by reason of acceptance of offer to give up their past services, the
optees did not and could not have waived their fundamental right and, thus,
acceptance of the conditions for their absorption was not material; (iii) in view
D of the fact that similar benefits were granted by the court in favour of S/Shri
Brij Mohan Goel and Sushil Chandra Dwivedi, the Respondents could not have
been discriminated against. Hence this appeal.
On behalf of the Appellants it was contended that (i) the plea of
E discrimination raised by the Respondents was misconceived as the High Court
overlooked the fact that no finality has been attained in the cases of Brij Mohan
Goel and Sushi/ Chandra Dwivedi and the matters are still sub-judice; (ii) so
far as the case of Sushi! Chandra Dwivedi is concerned, the order impugned
therein was quashed on the ground that the principle of natural justice had
not been complied with and thus, the same must be held to be pending decision
F before the appropriate department; (iii) in the case of Shri D. C. Srivastava,
the writ petition having wrongly been dismissed as infructuous, this Court,
by Judgment dated 24.3.2003 in Civil Appeal Nos. 2403-04 of2003, restored
the writ petition and remitted the matter back to the High Court; (iv) Rule 7
was amended by the State by an order dated 9.12.2002 whereby and whereunder
G the post of Assistant Engineer in Jal Nigam, an autonomous body under the
U.P. Water Sewarage Act was held not to be equivalent to the post of Assistant
Engineer in the Development Authority Centralized Service; (v) S/Shri Brij
Mohan Goel and Sushil Chandra Dwivedi being already in the services of the
Development Authority, were not required to opt for Centralised Service in
terms of Section 5-A of the Act and Rule 7 of the Rules, whereas Jal Nigam
H being not a Development Authority and its services having not merged in the
INDU SHEKHAR SINGH v. STA TE OF U.P.
499
Centralised Service, Rule 7 could not have been applied in the fact of the A
present case, as in fact Rule 28 would apply hereto. (vi) An erroneous order
cannot be made the basis for sustaining a plea of discrimination. It was also
contended that (i) the Respondents did not have any fundamental right to be
deputed to any other autonomous organization or being absorbed permanently
and thus, the question as regard reckoning of their past services for the B
purpose of seniority was a matter which was within the exclusive domain of
the State in respect whereof the High Court should not have exercised its
power of judicial review (iii) reckoning of past services was directed to be
made by this Court only i the cases (a) where Army Officers were recruited
during national emergencies and such past services were directed to be
counted in terms of the Rules; (b) where recruitment had been made from C
multi sources including that of deputation; (iii) the said principles would not,
thus, apply to the present case having regard to the provisions of Section SA of the Act and in that view of the matter, Articles 14 and 16 of the
Constitution cannot be said to have any application whatsoever; (iv) doctrine
of Election would apply in the case of Respondents as they had a choice to
refuse absorption and ask for their reversion to the parent department, but D
having not done so, they cannot be allowed to turn round and contend that
they had been discriminated against; (v) the Respondents having accepted
conditional appointment as far back in the year 1987 ad 1994, could not have
filed a writ petition in the year 2000 which, thus, suffering from inordinate
delay and latches, the writ petition should have been dismissed. (vi) Respondent E
Nos. 2 to 4, having not been absorbed in terms of Section 5-A of the Act, the
provisions of Rule 7 of the Rules, 1985 were not attracted.
On behalf of the State it was submitted that in view of the notification
dated 9.12.2002, the writ petition fil~d by the Respondents has become
infructuous under Section 5-A(2) of the Act. Hence, the benefit of Rule 7(1) F
of the 1985 Rules is not available to the said respondents.
On behalf of Respondent Nos. 2 to 4 it was contended that (i) no ground
of delay and latches having been raised by the State and the Appellants who
were not parties to the writ petition and hence, they cannot be allowed to raise
the said contention before this Court; (ii) it is not a case where Respondent G
Nos. 2 to 4 had been appointed through side door and having regard to the
fact that the conditions imposed for their absorption by the State were unfair
and unreasonable, the same would be violative of Article 14 of the Constitution
of India and in tha~ view of the matter, the impugned judgment of the High
Court is sustainabl,e in law; (iii) there being not much difference between H
-~
500
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A deputation and transfer, and the Respondent, being deputationists, must be
regarded to have been appointed on transfer from Jal Nigam and hence, could
not be denied an equivalent position in the transferee department, wherefor
their past services could not have been ignored; (iv) length of service being
the ordinary law for reckoning seniority of the employees, the State of U.P.
B could not deny the benefits thereof to the Respondents; (v) Even assuming
that Respondent Nos. 2 to 4 gave concurrence to that effect that they would
not be conferred the benefits of the services rendered in Jal Nigam, for
fixation of seniority they are at least entitled to the seniority from the date of
their deputation till the date of their absorption as the decision on their offer
could not have been taken after an unreasonable period, which is itself violative
C of Article 14 of the Constitution of India; (vi) The State or for that matter the
Authority, during the pendency of the cases of the Respondents, could not
have made ad-hoc appointments and given seniority to those ad-hoc employees.
(vii) the High Court has rightly followed the cases and the decisions passed
in Sushi! Chandra Dwivedi and Brij Mohan Goel as seniority had been given
to them, altho!lgh they were appointed on work charge basis and they have
D not only been promoted to the post Executive Engineer, they have also been
promoted to the post of Superintending Engineer.
Allowing the appeals, the Court
HELD: I.I. Respondent Nos. 2 to 4 were not and could not have been
E absorbed under Section 5-A(2) of the Uttar Pradesh Urban Planning and
Development Act, 1973 and thus evidently Rule 7(1) of the Uttar Pradesh
Development Authority Centralised Services Rules, 1985 not attracted.
[509-C]
F
1.2. Respondent Nos. 2 to 4, therefore, are not entitled to the benefits of
Rule 7 of U.P. Development Authorities Centralised Services Rules, 1986. In
terms of the rules, there is no provision for appointment by way of transfer.
There is also no provision for appointment on permanent absorption of the
deputed employees. The only provision which in the fact situation obtaining
in the present case would apply and that too in the event the State intended to
G absorb the employees of Jal Nigam, would be Section 7(1) of the Act and SubRule (2) of Rule 37 of Rules, 1985. [513-G, H; 514-Al
1.3. The terms and conditions of recruitment/appointed to the post,
seniority and other terms and conditions of service are governed by statutory
rules. The statute provides that only those who were in the employment of the
H different Development Authorities, shall be borne to the cadre of the Central
INDUSHEKHARSINGHv. STATEOFU.P.
501
Services. The U.P. Jal Nigam was not a Development Authority. It was A
constituted under a different statute. It was an autonomous body. The
employees working with Jal Nigam might have been might have been deputed
to the services of the Development Authorities, but only by reason thereof
they did not derive any right to be absorbed in the services. Ordinarily, an
employee has no legal right to be deputed to another organization. He has B
· also no right to be permanently absorbed excepting in certain situation.
[512-H; 513-A, BJ
UO.I. thr. Govt. of Pondicherry and Anr. v. V. Ramkrishnan and Ors.,
12005) 8 sec 394, relied upon.
Ram Janam Singh v. State of U.P. and Anr., [1994) 2 SCC 622 and D.R. C
Yadav and Anr. v. R.K. Singh and Anr., [2003] 7 SCC llO 7 SCC llO, referred
to.
Prafulla Kumar Das and Ors. v. State of Orissa and Ors., [2003) l l SCC
614 and Roshan Lal Tandon v. Union of India, AIR (1967) SC 1889,
distinguished.
2.1. Seniority, as is well settled, is not a fundamental right. It is merely
a civil right. [514-A]
Bimlesh Tanwar v. State of Haryana, [2003] 5 SCC 604 and Prafulla
Kumar Das & Ors. v. State of Orissa and Ors., [2003] I I SCC 614, referred
to.
3.1. The State is within its right to impose conditions. The Respondents
exercised their right of election. They could have accepted the said offer or
rejected the same. While making the said offer, the State categorically stated
that for the purpose of fixation of seniority, they would not be obtaining the
benefits of services rendered in U.P. Jal Nigam and would be placed below in
D
E
the cadre till the date of absorption. Moreover, the period they were with the F
Authority by way of deputation, can not be considered towards seniority simply
for the reason that till they were absorbed, they continued to be in the
employment of the Jal Nigam. Furthermore, the said condition imposed is
backed by another condition that the deputed employee who is seeking for
absorption shall be placed below the officers appointed in the cadre till the G
date of absorption. Respondent Nos. 2 to 4 accepted the said offer without any
demur. There is no fundamental right in regard to the counting of the services
rendered in an autonomous body. The past services can be taken into
consideration only when the Rules permit the same or where a special
situation exists, which would entitle the employee to obtain such benefit of
past service. [514-D-F-H; 515-A)
H
•
502
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A
Government of Andhra Pradesh and Ors v. MA. Kareem and Ors., ( 1991 I
Supp. 2 SCC 183; U.P. Awas Evam Vikas Parishad and Ors. v. Rajendra
Bahadur Srivastava and Anr., ( 19951 Supp. 4 SCC 76; Union of India and
Anr. v. Onkar Chand and Ors., (19981 9 SCC 298 and Anand Chandra Dash
v. State of Orissa and Ors., (199812 SCC 560, relied upon.
B
R.S. Makashi and Ors. v. I.M Menon and Ors., (198211sec379 and
Wing Commander J. Kumar v. Union of India and Ors., (19821 2 SCC 116,
referred to.
K. Madhavan and Anr. v. Union of India and Ors., (198714 SCC 566;
K. Anjaiah and Ors. v. K. Chandraiah and Ors., (199813 SCC 218 and SubC Inspector Roop/al and Anr. v. Lt. Governor through Chief Secretary, Delhi
and Ors., (20001 I SCC 644, distinguished.
3.2. The respondents exercised their right of option. Once they obtained
entry on the basis of election, they cannot be allowed to tum round and contend
D that the conditions are illegal. It was open to the Respondents herein not to
agree to in spite of the said conditions as they had already been working with
a statutory authority, they, however, expressly consented to do so. They must
have exercised their option, having regard to benefits to which they were
entitled to in the new post. Once such option is exercised, the consequences
attached thereto would ensue. (525-E, Fl
E
HEC Voluntary Retd Emps. Welfare Soc. and Anr. v. Heavy Engineering
Coporation Ltd. and Ors., JT (2006) 3 SC 102, referred to.
R.N. Gosain v. Yashpal Dhir, ( 19921 4 SCC 683; Ramankutty Guptan v.
Avara, (1994( 2 SCC 642 and Bank of India and Ors. v. O.P. Swarnakar and
F Ors. (20031 2 sec 721, relied upon.
G
H
3.3. Absorption of the deputationists, on the other hand, would depend
upon an arrangement, which may be made by the State being not a part of the
statutory Rule. They would, thus, be borne in the cadre in terms of the
directions of the State in exercise of its residuary power. (516-AI
4.1. Since the appellants were not joined as parties in the writ petition
filed by the Respondents, in their absence, the High Court could not have
determined the question of inter se seniority. (525-GI
Prabodh Verma and Ors. v. State of U.P. and Ors., AIR (1985) SC 167,
INDU SHEKHAR SINGH v. STA TE OF U.P. [SINHA, J.]
503
relied upon.
CIVIL ORIGINAL JURISDICTION : Civil Appeal No. 6960 of2005.
From the Judgment/Order dated 4.4.2003 of the High Court of Judicature
at Allahabad in C.M.W.P. No. 22646 of2000.
WITH
Civil Appeal No. 6961 of2005.
Rakesh Dwivedi, Vishwajit Singh, Vijay Kumar, Saad Shervan, Abhishek
Chaudhary, Gaurav Bhatia, Adarsh Upadhyaya, Piyush Vats, Ajit, Bharti and
Vimla Sinha for the Appellants.
M.L. Verma, A.K. Srivastava, Jaideep Gupta, Ashok Kumar Singh, Punam
Kumari, Naresh Kumar Gaur, Satya Mitra, K.K. Mohan, Dr. Indra Pratap Singh,
Garvesh Kabra, Anuvrat Sharma, Sanjay Kr. Singh, Reena Singh and T. Mahipal
for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J : These appeals arising out of a judgment and order of
the Allahabad High Court dated 4.4.2003 were taken up for hearing together
and are being disposed of by this common judgment.
A
B
c
D
E
The Respondent No. 2- Mani Kant Gupta, Respondent No. 3-Virendra
Kumar Tyagi and Respondent No. 4-Sukhpal Singh and the intervener herein
(now Respondent No. 6-Vijay Kumar) were appointed in U.P. Jal Nigam on
5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively. Several town
planning authorities including Ghaziabad Development Authority were created F
by Uttar Pradesh Urban Planning and Development Act, 1973 ('the Act', for
short) with a view to provide for development of certain areas of State ofUttar
Pradesh according to the plans and for other matters incidental thereto.
Section 4 of the Act empowers the State Government to issue a notification
constituting a development authority for any development area. In exercise
of the said power, the State ofU.P. constituted various development authorities, G
including the Ghaziabad Development Authority. By reason ofU.P. Act No.
21 of 1985, the State of U.P. inserted Section 5-A in the said Act to create
centralized services of all the development authorities, sub-sections 1 and 2
·whereof read as under:
"5-A (1) Notwithstanding anything to the contrary contained in H
504
A
B
c
D
SUPREME COURT REPORTS (2006] SUPP. I S.C.R.
Section 5 or in any other law for the time being in force, the State
Government may at any time, by notification, create one or more
'Development Authorities Centralized Services' for such posts, other
than the posts mentioned in sub-section (4) of Section 59, as the State
Government may deem fit, common to all the development Authorities,
and may prescribe the manner and conditions of recruitment to, and
the terms and conditions of service of persons appointed to such
service.
(2) Upon creation of a Development Authorities Centralised Service,
a person serving on the posts included in such service immediately
before such creation, not being a person governed by the U.P. Palika
(Centralised) Services Rules, 1966, or serving on deputation, shall,
unless he opts otherwise, be absorbed in such service, -
(a) finally, if he was already confirmed in his post, and
(b) provisionally, if he was holding temporary or officiating
appointment."
The said provision came into force with retrospective effect from 22.10.84.
Uttar Pradesh Development Authority Centralised Services Rules were
notified by the Government of Uttar Pradesh on 25th June, 1985 (the '1985
E Rules', for short), some of the relevant provisions whereof would be noticed
by us hereinafter.
F
The Respondent Nos. 2, 3, 4 and 6 (the intervener) were deputed to
Ghaziabad Development Authority on diverse dates, i.e., 26.6.1986, 6.5.1989,
16.!0.1985 and 1.4.1984 respectively.
U.P. Jal Nigam, admittedly, is not and has never been a development
authority. The employees on deputation to the development authorities from
U.P. Jal Nigam, therefore, could not have been absorbed in the centralized
services in terms of Sub-section (2) of Section 5-A of the Act. Options were,
G however, called for from the officers of U.P. Jal Nigam on deputation on
various dates by the State of U.P.
By letter 27.8.1987 and 28.11.1991 they were asked to communicate their
acceptance stating as to whether they would like to be absorbed in the
authorized centralized service subject to the conditions specified therein, e.g.,
H their past services rendered in U.P. Jal Nigam would not be reckoned for the
INDUSHEKHARSINGHv. STATEOFU.P. [SINHA,J.)
505
purpose of detennination of seniority and they would be placed below the A
officers who had been appointed on regular basis in centralized service after
their absorption. A copy of the Office order dated 3rd February, I 997 by way
of example may be noticed:
"GOVERNMENT OF UTT AR PRADESH HOUSING SECTION-5
No. 338/9 Housing-5-97-2628/96
Lucknow dated 03 February, l 997
OFFICE ORDER
B
For fixation of seniority of Shri Sushi! Chandra Dwivedi, Assistant
Engineer in Authority Centralised Services, the Government Otder No. C
416912/9Aa-5-91/94 dated 6.11.95 with respect to inclusion of service
rendered by him in State Planning Institute was not found legal in
view of Rule 7(1) of Authority Centralised Services Rules. Consequently,
after consideration, the said order dated 6.1.95 is hereby cancelled.
2. As a result, in Authority Centralised Services on the post of D
Assistant Engineer, in the Seniority list declared vide Government
Order No. 159619 Aa-5-95-1235/95 dated 12.4.96, the seniority of Shri
Dwivedi is ordered by the Governor to be fixed below Shri Anil Kumar
Goel shown at serial no.64 and in order of seniority at serial no.6
above Shri Ramesh Kumar at serial 64A in order of seniority.
E
Illegible
Chief Secretary"
The Respondents herein, admittedly, resigned from their services from
U.P. Jal Nigam. The Respondent No. 2 accepted the said offer of the State in
tenns of his letter dated 27.8. 1987 stating:
p
"With regard to the conditions stated in your Office memo referred
to above on the aforementioned subject, I submit as follows :
(a)
The applicant fully accepts the condition Nos.1,2,3,4 mentioned
in your Office Memo, whereas with respect to condition no.5, I G
submit that this condition .has already been complied with vide
letter No. 66/87 dated 2.5.87 of Vice Chairman, Ghaziabad
Development Authority.
(b) With respect to condition No. 2, I submit that the applicant has
been appointed on regular basis in U.P. Jal Nigam on the post of H
Assistant Engineer (Civil) in accordance with the rules and
506
A
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SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
regulations in the year 1978 after qualifying in written examination
and interview etc. Subsequently w .e.f. 1.4.84 my services on the
post of Assistant Engineer were made permanent. Photocopy of
the Office memo is enclosed for your perusal. Therefore, presently
the applicant is appointed on permanent basis on the post of
Assistant Engineer in U.P. Jal Nigam. Thereafter, according to my
knowledge, on the basis of Government Orders which are at
present in existence my absorption in Authority Centralised
Services should be treated as regular selection from the date of
absorption.
C
Therefore, you are again requested that a decision in this regard
should be taken on a sympathetic consideration. Thereafter, whatever
decision is taken shall be acceptable to the applicant.
In accordance with the instructions contained in the last paragraph
of your above referred office memo, I am enclosing my resignation
D
addressed to the Managing Director, U.P. Jal Nigam, Lucknow. Kindly
forward the same to the Managing Director."
No option, however, was given to Respondent Nos.3 and 6 (the
intervener). They, however, presumably opted on their own for their absorption
in the authorized centralised services of the development authorities. It is not
E in dispute that the State issued letters of absorption, so far as Respondent
Nos.2 and 3 are concerned on 18.3 .1994 and so far as Respondent Nos. 4 and
6 (the intervener) are concerned on 6.4.1987. The Appellants herein were
appointed in various development authorities the details whereof are as
under:
F
S.No.
Name
Date of appointment
I.
lndu Shekhar Singh
142.83
2.
Shivraj Singh
14.5.82
3.
S.N. Tripathi
24.7.79
4.
S.S. Verma
27.6.84
G
5.
P.C. Pandey
12.10.84
6.
Rakesh Kr. Shukla
15.5.82
7.
Ajay Kr. Singh
24.4.82
H
INDU SHEKHAR SINGH v. STA TE OF U.P. [SINHA, J.]
507
In view of Rule 7 of the Uttar Pradesh Development Authorities Rules, A
1985, the Appellants were placed above the Respondent Nos.2, 3, 4 and 6 in
the seniority list. Questioning the said orders, Respondent Nos. 2 to 4 herein
filed a writ petition before the Allahabad High Court praying, inter alia, for
the following relief:
"i. To issue a writ order or direction in the nature of mandamus B
commanding the respondents to give benefit of past service to the
petitioners rendered by them in the parent department and to treat the
petitioners for promotion or promote them when the juniors were
considered and promoted else they shall suffer irreparable loss and
injury."
By reason of the impugned order dated 4.4.2003, the said writ petition
has been allowed. The High Court, relying on or on the basis of the decision
of this Court in Sub-Inspector Roop/al & Anr. v. Lt. Governor through Chief
Secretary, Delhi & Ors., [2000) I SCC 644, opined:
( l) That refusal on the part of the State to grant benefit of past service
in U.P. Jal Nigam in favour of the Respondents is violative of Articles 14 and
16 of the Constitution of India;
c
D
(2) By reason of acceptance of offer to give up their past services, the
optees did not and could not have waived their fundamental right and, thus, E
acceptance of the conditions for their absorption was not material;
(3) In view of the fact that similar benefits were granted by the court
in favour of S/Shri Brij Mohan Goel and Sushil Chandra Dwivedi, the
Respondents could not have been discriminated against.
Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the
Appellants in support of these appeals would submit:
F
l.(i) That the plea of discrimination raised by the Respondents was
misconceived as the High Court overlooked the fact that no finality has been
attained in the cases of Brij Mohan Goel and Sushi/ Chandra Dwivedi and G
the matters are still sub-judice;
(ii) So far as the case of Sushi/ Chandra Dwivedi is concerned, the
order impugned therein was quashed on the ground that the principles of
natural justice had not been complied with and thus, the same must be held
to be pending decision before the appropriate department;
H
508
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A
(iii) In the case of Shri D.C. Srivastava, the writ petition having wrongly
been dismissed as infructuous, this Court, by Judgment dated 24.3.2003 in
Civil Appeal Nos.2403-04 of 2003, restored the writ petition and remitted the
matter back to the High Court;
(iv) Rule 7 was amended by the State by an order dated 9.12.2002
B whereby and whereunder the post of Assistant Engineer in Jal Nigam, an
autonomous body under the U.P. Water Sewarage Act, was held not to be
equivalent to the post of Assistant Engineer in the Development Authority
Centralized Service;
(v) S/Shri Brij Mohan Goel and Sushi! Chandra Dwivedi being already
C in the services of the Development Authority, were not required to opt for
Centralised Service in terms of Section 5-A of the Act and Rule 7 of the Rules,
whereas Jal Nigam being not a Development Authority and its services
having not merged in the Centralised Service, Rule 7 could not have been
applied in the fact of the present case, as in fact Rule 28 would apply hereto.
D
(vi) An erroneous order cannot be made the basis for sustaining a plea
of discrimination.
11.(i) The Respondents did not have any fundamental right to be deputed
to any other autonomous organization or being absorbed permanently and
E thus, the question as regard reckoning of their past services for th~ purpose
of seniority was a matter which was within the exclusive domain of the State
in respect whereof the High Court should not have exercised its power of
judicial review.
(iii) Reckoning of past services was directed to be made by this Court
F
only in the cases:
G
(a)
where Army Officers were recruited during national emergencies
and where such past services were directed to be counted in
terms of the Rules;
(b) where recruitment had been made from multi sources including
that of deputation;
(iii) The said principles would not, thus, apply to the present case
having regard to the provisions of Section 5-A of the Act and in that view
of the matter, Articles 14 and 16 of the Constitution cannot be said to have
H any application whatsoever;
INDU SHEKHAR SINGH v. ST A TE OF U .P. [SINHA, J.]
509
(iv) Doctrine of Election would apply in the case of Respondents as A
they had a choice to refuse absorption and ask for their reversion to the
parent department, but having not done so, they cannot now be allowed to
turn round and contend that they had been discriminated against;
(v) The Respondents having accepted conditional appointment as far
back in the year 1987 and 1994, could not have filed a writ petition in the year B
2000 which, thus, suffering from inordinate delay and latches, the writ petition
should have been dismissed.
(vi) The Respondent Nos. 2 to 4, having not been absorbed in terms
of Section 5-A of the Act, the provisions of Rule 7 of the Rules, 1985 were C
not attracted.
The learned counsel appearing on behalf of the State submitted that in
view of the notification dated 9.12.2002, the writ petition filed by the
Respondents has become infructuous· and in this connection our attention
was drawn to paragraph 5 of its counter affidavit, which is to the following D
effect:
"5. That, it may further be stated that under the provisions of the U.P.
Development Authorities Centralised Services Rules 1985 and the
I Ith Amendment dated 9.12.2002 therein whereby Rule 7(1) of the said
Rules stood substituted, the past services of only those officers/ E
employees shall be counted towards seniority, who are finally absorbed
in the service under section 5-A(2) of the Act, on the criterion of
continuous length of service including the services rendered in a
Development Atuhority, Nagar Mahapalika, Nagar Palika, Improvement
Trust or in Government Department on similar posts. Respondent nos.
2 to 4 have not been absorbed under Section 5-A(2) of the Act. F
Hence, the benefit of Rule 7(1) of the 1985 Rules is not available to
the said respondents."
Mr. M.L. Verma, learned Senior Counsel appearing on behalf of the
Respondent Nos. 2 to 4, on the other hand, submitted:
(i) That no ground of delay and latches having been raised by the State
and the Appellants who were not parties to the writ petition and hence, they
cannot be allowed to raise the said contention before this Court;
G
(ii) It is not a case where the Respondent Nos. 2 to 4 had been H
510
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A appointed through side door and having regard to the fact that the conditions
imposed for their absorption by the State were unfair and unreasonable, the
same would be violative of Article 14 of the Constitution oflndia and in that
view of the matter, the impugned judgment of the High Court is sustainable
in law;
B
c
(iii) There being not much difference between deputation and transfer,
and the Respondents, being deputationists, must be regarded to have been
appointed on transfer from Jal Nigam and hence, could not be denied an
equivalent position in the transferee department, wherefor their past services
could not have been ignored;
(iv) Length of service being the ordinary law for reckoning seniority of
the employees, the State of U.P. could not deny the benefits thereof to the
Respondents;
(v) Even assuming that the Respondent Nos. 2 to 4 gave concurrence
D to that effect that they would not be conferred the benefits of the services
rendered in Jal Nigam, for fixation of seniority they are at least entitled to the
seniority from the date of their deputation till the date of their absorption as
the decision on their offer could not have been taken after an unreasonable
period, which is itself violative of Article 14 of the Constitution of India;
E
(vi) The State or for that matter the Authority, during the pendency of
the cases of the Respondents, could not have made ad-hoc appointments and
give seniority to those ad-hoc employees.
'
(vii) The High Court has rightly followed the cases and the decisions
passed in Sushi/ Chandra Dwivedi and Brij Mohan Goel as seniority had
F been given to them, although they were appointed on work charge basis and
they have not only been promoted to the post of Executive Engineer, they
have also been promoted to the post of Superintending Engineer.
Sections 2(vi) and 2(vii) of the Act are :
G
"2(vi) 'Member of the service' means a person absorbed against or
appointed to a post in the cadre of the service under these rules;
(vii) 'Service' means the Uttar Pradesh Development Authorities
Centralised Services created under the Act."
H
Rule 7(1) of the U.P. Development Authorities Centralised Services
INDU SHEKHARSINGH v. STATEOFU.P. [SINHA,J.)
511
Rules, 1986 which has been amended by Amendment Rules, 2002 reads thus: A
Column-I
Column-I
Existing Rule
Rule as hereby substituted
7( I) Notwithstanding anything in 7(1) Notwithstanding anything in rule
rule 28 the seniority of such officers 28 the seniority of such officers and
and other employees who are finally other employees who are finally
B
absorbed in the service under Sub- absorbed in the service under Subsection (2) of section 5-A of the Act section (2) of section 5-A of the Act
shall be determined on the criterion shall be determined on the criterion
of continuous length of service of continuous length of service
including the services rendered in a including the services rendered in a c
Development Authority, Nagar Development Authority, Nagar
Mahapalika, Nagar Palika or Mahapalika, Nagar Palika or
Improvement Trust on similar posts. Improvement Trust or in Government
1 Department on similar posts.
Rule 28 of the Rules, 1985 reads:
D
"28. Seniority. - (I) 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:
E
Provided that if more than one order or appointment are i~sued
in respect of any one selection, the seniority shall be mentioned
in the combined order of appointment issued under Sub-rule (3)
of Rule 25.
(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 or the Selectio_n Committee, as the case may be :
Provided that a candidate required directly may lose his seniority
F
if he fails to join without valid reasons when vacancy is offered G
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.
H
A
B
c
D
E
F
512
SUPREME COURT REPORTS (2006) SUPP. I S.C.R.
( 4) Notwithstanding anything in Sub-rule (I) the inter se seniority of
persons appointed by direct recruitment and by promotion shall be
determined from the date of joining the service in the case of direct
recruits and from the date of continuous officiation in the case of
promotees and where the date of continuous officiation of promotee
and the date of joining of the direct recruit is the same, the person
appointed by promotion shall be treated as senior:
Provided that where appointments in any years of
recruitment are made both by promotion and direct recruitment
and the respective quota of the source is prescribed, the inter se
seniority shall be determined by arranging the names in a
combined list in accordance with Rule 17 in such manner that the
prescribed percentage is maintained."
Rule 3 7 of the Rules states:
"37. Regulation of other matters.- (I) If any dispute of difficulty
arises regarding interpretation of any of the provistons of these rules,
the same shall be referred to the government whose decision shall be
final.
(2) In regard to the matters not covered by these rules or by
special orders, the members of service shall be governed by the rules,
regulations and orders applicable generally to U.P. Government
servants serving in connection with the affairs of the State.
(3) Matters not covered by Sub-rules (I) and (2) above shall be
governed by such orders as the Government may deem proper to
issue."
Part III of the Rules, 1985 deals with Suitability or Provisionally Absorbed
Persons, Part VII deals with Appointment, Probation, Confirmation and
Seniority. Rule 25 provides for appointment by the Authority in terms of the
selection process, which has been specified in Part V of the said Rules. PartG IV deals with recruitment.
The terms and conditions of recruitment/appointment to the post,
seniority and other terms and conditions of service are governed by statutory
rules. The statute provides that only those, who were in the employment of
the different Development Authorities, shall be borne to the cadre of the
H Central Services. The U.P. Jal Nigam was not a Development Authority. It was
INDU SHEKHAR SINGH v. STA TE OF U.P. [SINHA, J.]
513
constituted under a different statute. It was an autonomous body. The A
employees working with Jal Nigam might have been deputed to the services
of the Development Authorities, but only by reason thereof they did not
derive any right to be absorbed in the services. Ordinarily, an employee has
no legal right to be deputed to another organization. He has also no right to
be permanently absorbed excepting in certain situation as was held by this B
Court in U.0.1. thr. Govt. of Pondicherry & Anr. v. V. Ramkrishnan & Ors.,
[2005J 8 sec 394.
The Respondent Nos. 2 to 4 were deputed to the Ghaziabad Development
Authority on their own. They were presumed to be aware that they were not
borne in the cadre of Centralised Services. The Rules do not provide for C
appointment by way of transfer. Appointment by way of absorption of a
deputed employee would amount to fresh appointment which may be subject
to the offer given by the Authority. The Development Authority is a statutory
authority. So is the Jal Nigam. The Schedules appended to the Rules provide
for posts to be filled up by promotion or by direct recruitment or by both.
Schedule IV provides for the posts which were outside the purview of the D
Public Service Commission and are required to be filled up by promotion only,
whereas Schedule V specifies those posts outside the purview of the Public
Service Commission, but were to be filled up through direct recruitment only.
It is not disputed that the State of U.P. has since issued a notification on
9.12.2002 whereby and whereunder Rule 7(1) of the Rules, 1985 stood E
substituted, in terms whereof the past services of only those officers and
employees were to be counted who would finally be absorbed in the services
in terms of Section 5-A(2) of the Act on the criteria of continuous length of
service, including the service rendered in Development Authority, Nagar
Mahapalika, Nagar Palika or Improvement Trust on similar posts. The
Respondent Nos. 2 to 4 were not and could not have been absorbed under F
Section 5-A(2) of the Act and thus evidently Rule 7(1) is not attracted. The
only Rule, which provides for seniority, is Rule 28. Rules 7 and 28, as noticed
hereinbefore, occur in different Chapters providing for different situations.
The Respondent Nos.2 to 4, therefore were not entitled to the benefits
of Rule 7. In terms of the rules, there is no provision for appointment by way G
of transfer. There is also no provision for appointment on permanent absorption
of the deputed employees. The only provision which in the fact situation
obtaining in the present case would apply and that too in the event the State
intended to absorb the employees of Jal Nigam, would be Section 7(1) of the
H
514
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A Act and Sub-Rule (2) of Rule 3 7 of Rules, 1985.
B
Seniority, as is well settled, is not a fundamental right. It is merely a civil
right. [See Bimlesh Tanwar v. State of Haryana, [2003) 5 SCC 604, paragraph
49 and also Prafu/la Kumar Das & Ors. v.