{"id":242185,"date":"2006-04-28T00:00:00","date_gmt":"2006-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indu-shekhar-singh-ors-vs-state-of-u-p-ors-on-28-april-2006"},"modified":"2015-10-06T18:43:05","modified_gmt":"2015-10-06T13:13:05","slug":"indu-shekhar-singh-ors-vs-state-of-u-p-ors-on-28-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indu-shekhar-singh-ors-vs-state-of-u-p-ors-on-28-april-2006","title":{"rendered":"Indu Shekhar Singh & Ors vs State Of U.P. & Ors on 28 April, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indu Shekhar Singh & Ors vs State Of U.P. & Ors on 28 April, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, P.P. Naolekar<\/div>\n
           CASE NO.:\nAppeal (civil)  6960 of 2005\n\nPETITIONER:\nIndu Shekhar Singh & Ors.\n\nRESPONDENT:\nState of U.P. & Ors.\n\nDATE OF JUDGMENT: 28\/04\/2006\n\nBENCH:\nS.B. Sinha & P.P. Naolekar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWith Civil Appeal No.6961 of 2005<\/p>\n
S.B. SINHA, J :\n<\/p>\n
These appeals arising out of a judgment and order of the Allahabad
\nHigh Court dated 4.4.2003 were taken up for hearing together and are being
\ndisposed of by this common judgment.\n<\/p>\n
\tThe Respondent No.2- Mani Kant Gupta, Respondent No.3-Virendra
\nKumar Tyagi and Respondent No.4-Sukhpal Singh and the intervener herein
\n(now Respondent No.6-Vijay Kumar) were appointed in U.P. Jal Nigam on
\n5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively.  Several
\ntown planning authorities including Ghaziabad Development Authority were
\ncreated by Uttar Pradesh Urban Planning and Development Act, 1973 (‘the
\nAct’, for short) with a view to provide for development of certain areas of
\nState of Uttar Pradesh according to the plans and for other matters incidental
\nthereto.  Section 4 of the Act empowers the State Government to issue a
\nnotification constituting a development authority for any development area.
\nIn exercise of the said power, the State of U.P. constituted various
\ndevelopment authorities, including the Ghaziabad Development Authority.
\nBy reason of U.P. Act No.21 of 1985, the State of U.P. inserted Section 5-A
\nin the said Act to create centralized services of all the development
\nauthorities, sub-sections 1 and 2 whereof read as under:\n<\/p>\n
 “5-A (1)\tNotwithstanding anything to the contrary
\ncontained in Section 5 or in any other law for the time
\nbeing in force, the State Government may at any time, by
\nnotification, create one or more ‘Development
\nAuthorities Centralized Services’ for such posts, other
\nthan the posts mentioned in sub-section (4) of Section 59,
\nas the State Government may deem fit, common to all the
\ndevelopment Authorities, and may prescribe the manner
\nand conditions of recruitment to, and the terms and
\nconditions of service of persons appointed to such
\nservice.\n<\/p>\n
 (2)\tUpon creation of a Development Authorities
\nCentralised Service, a person serving on the posts
\nincluded in such service immediately before such
\ncreation, not being a person governed by the U.P. Palika
\n(Centralised) Services Rules, 1966, or serving on
\ndeputation, shall, unless he opts otherwise, be absorbed
\nin such service, —\n<\/p>\n
(a)\tfinally, if he was already confirmed in his
\npost, and<\/p>\n
(b)\tprovisionally, if he was holding temporary
\nor officiating appointment.”\n<\/p>\n
The said provision came into force with retrospective effect from
\n22.10.84.\n<\/p>\n
Uttar Pradesh Development Authority Centralised Services Rules
\nwere notified by the Government of Uttar Pradesh on 25th June, 1985 (the
\n‘1985 Rules’, for short), some of the relevant provisions whereof would be
\nnoticed by us hereinafter.\n<\/p>\n
The Respondent Nos.2, 3, 4 and 6 (the intervener) were deputed to
\nGhaziabad Development Authority on diverse dates, i.e., 26.6.1986,
\n6.5.1989, 16.10.1985 and 1.4.1984 respectively.\n<\/p>\n
U.P. Jal Nigam, admittedly, is not and has never been a development
\nauthority.  The employees on deputation to the development authorities from
\nU.P. Jal Nigam, therefore, could not have been absorbed in the centralized
\nservices in terms of Sub-section (2) of Section 5-A of the Act.  Options
\nwere, however, called for from the officers of U.P. Jal Nigam on deputation
\non various dates by the State of U.P.\n<\/p>\n
By letter 27.8.1987 and 28.11.1991, they were asked to communicate
\ntheir acceptance stating as to whether they would like to be absorbed in the
\nauthorized centralized service subject to the conditions specified therein,
\ne.g., their past services rendered in U.P. Jal Nigam would not be reckoned
\nfor the purpose of determination of seniority and they would be placed
\nbelow the officers who had been appointed on regular basis in centralized
\nservice after their absorption.  A copy of the Office order dated 3rd February,
\n1997 by way of example may be noticed:\n<\/p>\n
“GOVERNMENT OF UTTAR PRADESH
\nHOUSING SECTION-5<\/p>\n
No.338\/9 Housing-5-97-2628\/96
\nLucknow dated 03 February, 1997<\/p>\n
OFFICE ORDER<\/p>\n
\tFor fixation of seniority of Shri Sushil Chandra
\nDwivedi, Assistant Engineer in Authority Centralised
\nServices, the Government Order No.416912\/9Aa-5-91\/94
\ndated 6.11.95 with respect to inclusion of service
\nrendered by him in State Planning Institute was not found
\nlegal in view of Rule 7(1) of Authority Centralised
\nServices Rules.  Consequently, after consideration, the
\nsaid order dated 6.1.95 is hereby cancelled.\n<\/p>\n
2.\tAs a result, in Authority Centralised Services on
\nthe post of Assistant Engineer, in the Seniority list
\ndeclared vide Government Order No.1596\/9 Aa-5-95-
\n1235\/95 dated 12.4.96, the seniority of Shri Dwivedi is
\nordered by the Governor to be fixed below Shri Anil
\nKumar Goel shown at serial no.64 and in order of
\nseniority at serial no.6 above Shri Ramesh Kumar at
\nserial 64A in order of seniority.\n<\/p>\n
\t\t\t\t\t\t\tIllegible
\n\t\t\t\t\t\tChief Secretary”\n<\/p>\n
The Respondents herein, admittedly, resigned from their services from
\nU.P. Jal Nigam.  The Respondent No.2 accepted the said offer of the State in
\nterms of his letter dated 27.8.1987 stating:\n<\/p>\n
“With regard to the conditions stated in your Office
\nmemo referred to above on the aforementioned subject, I
\nsubmit as follows :\n<\/p>\n
(a)\tThe applicant fully accepts the condition Nos.1,2,3,4
\nmentioned in your Office Memo, whereas with
\nrespect to condition no.5, I submit that this condition
\nhas already been complied with vide letter No.66\/87
\ndated 2.5.87 of Vice Chairman, Ghaziabad
\nDevelopment Authority.\n<\/p>\n
(b)\tWith respect to condition No.2, I submit that the
\napplicant has been appointed on regular basis in U.P.
\nJal Nigam on the post of Assistant Engineer (Civil) in
\naccordance with the rules and regulations in the year
\n1978 after qualifying in written examination and
\ninterview etc.  Subsequently w.e.f. 1.4.84 my services
\non the post of Assistant Engineer were made
\npermanent.  Photocopy of the Office memo is
\nenclosed for your perusal.  Therefore, presently the
\napplicant is appointed on permanent basis on the post
\nof Assistant Engineer in U.P. Jal Nigam.  Thereafter,
\naccording to my knowledge, on the basis of
\nGovernment Orders which are at present in existence
\nmy absorption in Authority Centralised Services
\nshould be treated as regular selection from the date of
\nabsorption.\n<\/p>\n
Therefore, you are again requested that a decision in
\nthis regard should be taken on a sympathetic
\nconsideration.  Thereafter, whatever decision is taken
\nshall be acceptable to the applicant.\n<\/p>\n
In accordance with the instructions contained in the
\nlast paragraph of your above referred office memo, I am
\nenclosing my resignation addressed to the Managing
\nDirector, U.P. Jal Nigam, Lucknow.  Kindly forward the
\nsame to the Managing Director.”\n<\/p>\n
No option, however, was given to Respondent Nos.3 and 6 (the
\nintervener).  They, however, presumably opted on their own for their
\nabsorption in the authorized centralised services of the development
\nauthorities.  It is not in dispute that the State issued letters of absorption, so
\nfar as Respondent Nos.2 and 3 are concerned on 18.3.1994 and so far as
\nRespondent Nos. 4 and 6 (the intervener) are concerned on 6.4.1987.  The
\nAppellants herein were appointed in various development authorities the
\ndetails whereof are as under:\n<\/p>\n
S.No.\n<\/p>\n
            Name
\nDate of
\nappointment\n<\/p>\n
1.\n<\/p>\n
2.\n<\/p>\n
3.\n<\/p>\n
4.\n<\/p>\n
5.\n<\/p>\n
6.\n<\/p>\n
7.
\nIndu Shekhar Singh
\nShivraj Singh
\nS.N. Tripathi
\nS.S. Verma
\nP.C. Pandey
\nRakesh Kr. Shukla
\nAjay Kr. Singh
\n14.2.83
\n14.5.82
\n24.7.79
\n27.6.84
\n12.10.84
\n15.5.82
\n24.4.82<\/p>\n
\tIn view of Rule 7 of the Uttar Pradesh Development Authorities
\nRules, 1985, the Appellants were placed above the Respondent Nos.2, 3, 4
\nand 6 in the seniority list.  Questioning the said orders, Respondent Nos. 2 to
\n4 herein filed a writ petition before the Allahabad High Court praying, inter
\nalia, for the following relief:\n<\/p>\n
“i.\tTo issue a writ order or direction in the nature of
\nmandamus commanding the respondents to give benefit
\nof past service to the petitioners rendered by them in the
\nparent department and to treat the petitioners for
\npromotion or promote them when the juniors were
\nconsidered and promoted else they shall suffer
\nirreparable loss and injury.”\n<\/p>\n
By reason of the impugned order dated 4.4.2003, the said writ petition
\nhas been allowed.  The High Court, relying on or on the basis of the decision
\nof this Court in Sub-Inspector Rooplal & Anr. vs. Lt. Governor<\/a> through
\nChief Secretary, Delhi & Ors. [(2000) 1 SCC 644], opined:\n<\/p>\n
(1)\tThat refusal on the part of the State to grant benefit of past
\nservice in U.P. Jal Nigam in favour of the Respondents is violative of
\nArticles 14 and 16 of the Constitution of India;\n<\/p>\n
(2)\tBy reason of acceptance of offer to give up their past services,
\nthe optees did not and could not have waived their fundamental right and,
\nthus, acceptance of the conditions for their absorption was not material;
\n(3)\tIn view of the fact that similar benefits were granted by the
\ncourt in favour of S\/Shri Brij Mohan Goel and Sushil Chandra Dwivedi, the
\nRespondents could not have been discriminated against.\n<\/p>\n
Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf of
\nthe Appellants in support of these appeals would submit:\n<\/p>\n
I.(i) \tThat the plea of discrimination raised by the Respondents was
\nmisconceived as the High Court overlooked the fact that no finality has been
\nattained in the cases of Brij Mohan Goel and Sushil Chandra Dwivedi and
\nthe matters are still sub-judice;\n<\/p>\n
(ii)\tSo far as the case of Sushil Chandra Dwivedi is concerned, the
\norder impugned therein was quashed on the ground that the principles of
\nnatural justice had not been complied with and thus, the same must be held
\nto be pending decision before the appropriate department;\n<\/p>\n
(iii)\tIn the case of Shri D.C. Srivastava, the writ petition having
\nwrongly been dismissed as infructuous, this Court, by Judgment dated
\n24.3.2003 in Civil Appeal Nos.2403-04 of 2003, restored the writ petition
\nand remitted the matter back to the High Court;\n<\/p>\n
(iv)\tRule 7 was amended by the State by an order dated 9.12.2002
\nwhereby and whereunder the post of Assistant Engineer in Jal Nigam, an
\nautonomous body under the U.P. Water Sewarage Act, was held not to be
\nequivalent to the post of Assistant Engineer in the Development Authority
\nCentralized Service;\n<\/p>\n
(v)\tS\/Shri Brij Mohan Goel and Sushil Chandra Dwivedi being
\nalready in the services of the Development Authority, were not required to
\nopt for Centralised Service in terms of Section 5-A of the Act and Rule 7 of
\nthe Rules, whereas Jal Nigam being not a Development Authority and its
\nservices having not merged in the Centralised Service, Rule 7 could not have
\nbeen applied in the fact of the present case, as in fact Rule 28 would apply
\nhereto.\n<\/p>\n
 (vi)\tAn erroneous order cannot be made the basis for sustaining a
\nplea of discrimination.\n<\/p>\n
\tII.(i)\tThe Respondents did not have any fundamental right to be
\ndeputed to any other autonomous organization or being absorbed
\npermanently and thus, the question as regard reckoning of their past services
\nfor the purpose of seniority was a matter which was within the exclusive
\ndomain of the State in respect whereof the High Court should not have
\nexercised its power of judicial review.\n<\/p>\n
\t(iii)\tReckoning of past services was directed to be made by
\nthis Court only in the cases:\n<\/p>\n
(a)\twhere Army Officers were recruited during
\nnational emergencies and where such past services
\nwere directed to be counted in terms of the Rules;\n<\/p>\n
(b)\twhere recruitment had been made from multi
\nsources including that of deputation;\n<\/p>\n
(iii)\tThe said principles would not, thus, apply to the present case
\nhaving regard to the provisions of Section 5-A of the Act and in that view of
\nthe matter, Articles 14 and 16 of the Constitution cannot be said to have any
\napplication whatsoever;\n<\/p>\n
(iv)\tDoctrine of Election would apply in the case of Respondents as
\nthey had a choice to refuse absorption and ask for their reversion to the
\nparent department, but having not done so, they cannot now be allowed to
\nturn round and contend that they had been discriminated against;\n<\/p>\n
(v)\tThe Respondents having accepted conditional appointment as
\nfar back in the year 1987 and 1994, could not have filed a writ petition in the
\nyear 2000 which, thus, suffering from inordinate delay and latches, the writ
\npetition should have been dismissed.\n<\/p>\n
(vi)\tThe Respondent Nos. 2 to 4, having not been absorbed in terms
\nof Section 5-A of the Act, the provisions of Rule 7 of the Rules, 1985 were
\nnot attracted.\n<\/p>\n
The learned counsel appearing on behalf of the State submitted that in
\nview of the notification dated 9.12.2002, the writ petition filed by the
\nRespondents has become infructuous and in this connection our attention
\nwas drawn to paragraph 5 of its counter affidavit, which is to the following
\neffect:\n<\/p>\n
“5.\tThat, it may further be stated that under the
\nprovisions of the U.P. Development Authorities
\nCentralised Services Rules 1985 and the 11th Amendment
\ndated 9.12.2002 therein whereby Rule 7(1) of the said
\nRules stood substituted, the past services of only those
\nofficers\/employees shall be counted towards seniority,
\nwho are finally absorbed in the service under section 5-
\nA(2) of the Act, on the criterion of continuous length of
\nservice including the services rendered in a Development
\nAtuhority, Nagar Mahapalika, Nagar Palika,
\nImprovement Trust or in Government Department on
\nsimilar posts.  Respondent nos. 2 to 4 have not been
\nabsorbed under Section 5-A(2) of the Act.  Hence, the
\nbenefit of Rule 7(1) of the 1985 Rules is not available to
\nthe said respondents.”\n<\/p>\n
Mr. M.L. Verma, learned Senior Counsel appearing on behalf of the
\nRespondent Nos. 2 to 4, on the other hand, submitted:\n<\/p>\n
(i)\tThat no ground of delay and latches having been raised by the
\nState and the Appellants who were not parties to the writ petition and hence,
\nthey cannot be allowed to raise the said contention before this Court;\n<\/p>\n
(ii)\tIt is not a case where the Respondent Nos. 2 to 4 had been
\nappointed through side door and having regard to the fact that the conditions
\nimposed for their absorption by the State were unfair and unreasonable, the
\nsame would be violative of Article 14 of the Constitution of India and in that
\nview of the matter, the impugned judgment of the High Court is sustainable
\nin law;\n<\/p>\n
(iii)\tThere being not much difference between deputation and
\ntransfer, and the Respondents, being deputationists, must be regarded to
\nhave been appointed on transfer from Jal Nigam and hence, could not be
\ndenied an equivalent position in the transferee department, wherefor their
\npast services could not have been ignored;\n<\/p>\n
(iv)\tLength of service being the ordinary law for reckoning seniority
\nof the employees, the State of U.P. could not deny the benefits thereof to the
\nRespondents;\n<\/p>\n
(v)\tEven assuming that the Respondent Nos. 2 to 4 gave
\nconcurrence to that effect that they would not be conferred the benefits of
\nthe services rendered in Jal Nigam, for fixation of seniority they are at least
\nentitled to the seniority from the date of their deputation till the date of their
\nabsorption as the decision on their offer could not have been taken after an
\nunreasonable period, which is itself violative of Article 14 of the
\nConstitution of India;\n<\/p>\n
(vi) The State or for that matter the Authority, during the pendency of
\nthe cases of the Respondents, could not have made ad-hoc appointments and
\ngive seniority to those ad-hoc employees.\n<\/p>\n
(vii)\tThe High Court has rightly followed the cases and the decisions
\npassed in Sushil Chandra Dwivedi and Brij Mohan Goel as seniority had
\nbeen given to them, although they were appointed on work charge basis and
\nthey have not only been promoted to the post of Executive Engineer, they
\nhave also been promoted to the post of Superintending Engineer.\n<\/p>\n
Sections 2(vi) and 2(vii) of the Act are :\n<\/p>\n
“2(vi)\t   ‘Member of the service’ means a person
\nabsorbed against or appointed to a post in the cadre of the
\nservice under these rules;\n<\/p>\n
(vii)\t‘Service’ means the Uttar Pradesh Development
\nAuthorities Centralised Services created under the Act.”\n<\/p>\n
Rule 7(1) of the U.P. Development Authorities Centralised Services
\nRules, 1986 which has been amended by Amendment Rules, 2002 reads
\nthus:\n<\/p>\n
Column-1
\nExisting Rule
\nColumn-1
\nRule as hereby substituted
\n7(1) Notwithstanding anything
\nin rule 28 the seniority of such
\nofficers and other employees
\nwho are finally absorbed in the
\nservice under Sub-section (2)
\nof section 5-A of the Act shall
\nbe determined on the criterion
\nof continuous length of service
\nincluding the services rendered
\nin a Development Authority,
\nNagar Mahapalika, Nagar
\nPalika or Improvement Trust
\non similar posts.\n<\/p>\n
7(1) Notwithstanding anything
\nin rule 28 the seniority of such
\nofficers and other employees
\nwho are finally absorbed in the
\nservice under Sub-section (2)
\nof section 5-A of the Act shall
\nbe determined on the criterion
\nof continuous length of service
\nincluding the services rendered
\nin a Development Authority,
\nNagar Mahapalika, Nagar
\nPalika or Improvement Trust or
\nin Government Department on
\nsimilar posts.\n<\/p>\n
Rule 28 of the Rules, 1985 reads:\n<\/p>\n
“28. \tSeniority.-\t(1) Except as hereinafter provided, the
\nseniority of persons in any category of post, shall be
\ndetermined from the date of order of appointment and if
\ntwo or more persons are appointed together, by the order
\nin which their names are arranged in the appointment
\norder:\n<\/p>\n
Provided that if more than one order or
\nappointment are issued in respect of any one
\nselection, the seniority shall be mentioned in the
\ncombined order of appointment issued under Sub-
\nrule (3) of Rule 25.\n<\/p>\n
(2)\tThe seniority inter se of persons appointed directly
\non the result of any one selection, shall be the same as
\ndetermined by the Commission or the Selection
\nCommittee, as the case may be :\n<\/p>\n
Provided that a candidate required directly
\nmay lose his seniority if he fails to join without
\nvalid reasons when vacancy is offered to him.  The
\ndecision of the appointing authority as to the
\nvalidity of reasons shall be final.\n<\/p>\n
(3)\tThe seniority inter se of persons appointed by
\npromotion shall be the same as it was in the cadre from
\nwhich they were promoted.\n<\/p>\n
(4)\tNotwithstanding anything in Sub-rule (1) the inter
\nse seniority of persons appointed by direct recruitment
\nand by promotion shall be determined from the date of
\njoining the service in the case of direct recruits and from
\nthe date of continuous officiation in the case of
\npromotees and where the date of continuous officiation
\nof promotee and the date of joining of the direct recruit is
\nthe same, the person appointed by promotion shall be
\ntreated as senior:\n<\/p>\n
Provided that where appointments in any
\nyears of recruitment are made both by promotion
\nand direct recruitment and the respective quota of
\nthe source is prescribed, the inter se seniority shall
\nbe determined by arranging the names in a
\ncombined list in accordance with Rule 17 in such
\nmanner that the prescribed percentage is
\nmaintained.”\n<\/p>\n
 Rule 37 of the Rules states:\n<\/p>\n
 “37.\tRegulation of other matters.- (1) If any dispute
\nof difficulty arises regarding interpretation of any of the
\nprovisions of these rules, the same shall be referred to the
\ngovernment whose decision shall be final.\n<\/p>\n
(2) In regard to the matters not covered by these
\nrules or by special orders, the members of service shall
\nbe governed by the rules, regulations and orders
\napplicable generally to U.P. Government servants serving
\nin connection with the affairs of the State.\n<\/p>\n
(3) Matters not covered by Sub-rules (1) and (2)
\nabove shall be governed by such orders as the
\nGovernment may deem proper to issue.”\n<\/p>\n
Part III of the Rules, 1985 deals with Suitability or Provisionally
\nAbsorbed Persons, Part VII deals with Appointment, Probation,
\nConfirmation and Seniority.  Rule 25 provides for appointment by the
\nAuthority in terms of the selection process, which has been specified in Part
\nV of the said Rules.  Part-IV deals with recruitment.\n<\/p>\n
The terms and conditions of recruitment\/appointment to the post,
\nseniority and other terms and conditions of service are governed by statutory
\nrules.  The statute provides that only those, who were in the employment of
\nthe different Development Authorities, shall be borne to the cadre of the
\nCentral Services.  The U.P. Jal Nigam was not a Development Authority.  It
\nwas constituted under a different statute.  It was an autonomous body.  The
\nemployees working with Jal Nigam might have been deputed to the services
\nof the Development Authorities, but only by reason thereof they did not
\nderive any right to be absorbed in the services.  Ordinarily, an employee has
\nno legal right to be deputed to another organization.  He has also no right to
\nbe permanently absorbed excepting in certain situation as was held by this
\nCourt in U.O.I. thr. Govt. of Pondicherry & Anr. vs. V. Ramkrishnan &
\nOrs. [(2005) 8 SCC 394].\n<\/p>\n
The Respondent Nos. 2 to 4 were deputed to the Ghaziabad
\nDevelopment Authority on their own.  They were presumed to be aware that
\nthey were not borne in the cadre of Centralised Services.  The Rules do not
\nprovide for appointment by way of transfer.  Appointment by way of
\nabsorption of a deputed employee would amount to fresh appointment which
\nmay be subject to the offer given by the Authority.  The Development
\nAuthority is a statutory authority.  So is the Jal Nigam.  The Schedules
\nappended to the Rules provide for posts to be filled up by promotion or by
\ndirect recruitment or by both.   Schedule IV provides for the posts which
\nwere outside the purview of the Public Service Commission and are required
\nto be filled up by promotion only, whereas Schedule V specifies those posts
\noutside the purview of the Public Service Commission, but were to be filled
\nup through direct recruitment only.  It is not disputed that the State of U.P.
\nhas since issued a notification on 9.12.2002 whereby and whereunder Rule
\n7(1) of the Rules, 1985 stood substituted, in terms whereof the past services
\nof only those officers and employees were to be counted who would finally
\nbe absorbed in the services in terms of Section 5-A(2) of the Act on the
\ncriteria of continuous length of service, including the service rendered in
\nDevelopment Authority, Nagar Mahapalika, Nagar Palika or Improvement
\nTrust on similar posts.  The Respondent Nos. 2 to 4 were not and could not
\nhave been absorbed under Section 5-A(2) of the Act and thus evidently Rule
\n7(1) is not attracted.  The only Rule, which provides for seniority, is Rule\n<\/p>\n
28.  Rules 7 and 28, as noticed hereinbefore, occur in different Chapters
\nproviding for different situations.\n<\/p>\n
The Respondent Nos.2 to 4, therefore were not entitled to the benefits
\nof Rule 7.  In terms of the rules, there is no provision for appointment by
\nway of transfer.  There is also no provision for appointment on permanent
\nabsorption of the deputed employees.  The only provision which in the fact
\nsituation obtaining in the present case would apply and that too in the event
\nthe State intended to absorb the employees of Jal Nigam, would be Section
\n7(1) of the Act and Sub-Rule (2) of Rule 37 of Rules, 1985   <\/p>\n
Seniority, as is well settled, is not a fundamental right.  It is merely a
\ncivil right. [See Bimlesh Tanwar vs. State of Haryana<\/a> (2003) 5 SCC 604,
\nparagraph 49 and also Prafulla Kumar Das & Ors. vs. State of Orissa &
\nOrs.<\/a>(2003) 11 SCC 614.]    <\/p>\n
The High Court evidently proceeded on the premise that seniority is a
\nfundamental right and thereby, in our opinion, committed a manifest error.\n<\/p>\n
The question which arises is as to whether the terms and  conditions
\nimposed by the State in the matter of absorption of Respondent Nos. 2 to 4
\nin the permanent service of Ghaziabad Development Authority is ultra vires
\nArticle 14 of the Constitution of India.\n<\/p>\n
The State was making an offer to the Respondents not in terms of any
\nspecific power under Rules, but in exercise of its residuary power (assuming
\nthat the same was available).  The State, therefore, was within its right to
\nimpose conditions.  The Respondents exercised their right of election.  They
\ncould have accepted the said offer or rejected the same.  While making the
\nsaid offer, the State categorically stated that for the purpose of fixation of
\nseniority, they would not be obtaining the benefits of services rendered in
\nU.P. Jal Nigam and would be placed below in the cadre till the date of
\nabsorption.  The submission of Mr. Verma that for the period they were with
\nthe Authority by way of deputation, should have been considered towards
\nseniority cannot be accepted simply for the reason that till they were
\nabsorbed, they continued to be in the employment of the Jal Nigam.
\nFurthermore, the said condition imposed is backed by another condition that
\nthe deputed employee who is seeking for absorption shall be placed below
\nthe officers appointed in the cadre till the date of absorption.  The
\nRespondent Nos.2 to 4 accepted the said offer without any demur on 3.9.87,
\n28.11.91 and 6.4.87 respectively.\n<\/p>\n
They, therefore, exercised their right of option.  Once they obtained
\nentry on the basis of election, they cannot be allowed to turn round and
\ncontend that the conditions are illegal.  [See R.N. Gosain vs. Yashpal Dhir<\/a>
\n(1992) 4 SCC 683,  Ramankutty Guptan vs. Avara<\/a> (1994) 2 SCC 642 and
\nBank of India & Ors. vs. O.P. Swarnakar & Ors.<\/a> (2003) 2 SCC 721.]
\nFurther more, there is no fundamental right in regard to the counting of the
\nservices rendered in an autonomous body.  The past services can be taken
\ninto consideration only when the Rules permit the same or where a special
\nsituation exists, which would entitle the employee to obtain such benefit of
\npast service.\n<\/p>\n
We may now look into some decisions of this Court.\n<\/p>\n
In Ram Janam Singh vs. State of U.P. & Anr. (1994) 2 SCC 622,
\nthis Court held:\n<\/p>\n
“It is now almost settled that seniority of an
\nofficer in service is determined with reference to the date
\nof his entry in the service which will be consistent with
\nthe requirement of Articles 14 and 16 of the Constitution.
\nOf course, if the circumstances so require a group of
\npersons, can be treated a class separate from the rest for
\nany preferential or beneficial treatment while fixing their
\nseniority.  But, whether such group of persons belong to
\na special class for any special treatment in matters of
\nseniority has to be decided on objective consideration
\nand on taking into account relevant factors which can
\nstand the test of Articles 14 and 16 of the Constitution.
\nNormally, such classification should be by statutory rule
\nor rules framed under Article 309 of the Constitution.
\nThe far-reaching implication of such rules need not be
\nimpressed because they purport to affect the seniority of
\npersons who are already in service.  For promotional
\nposts, generally the rule regarding merit and ability or
\nseniority-cum-merit is followed in most of the services.
\nAs such the seniority of an employee in the later case is
\nmaterial and relevant to further his career which can be
\naffected by factors, which can be held to be reasonable
\nand rational.”\n<\/p>\n
The Constitution Bench decision of this Court in Prafulla Kumar
\nDas & Ors. (supra), whereupon Mr. Verma placed reliance, does not lay
\ndown any universal rule that length of actual service is the determining
\nfactor in the matter of promotion and consequential  seniority.  In Roshan
\nLal Tandon vs. Union of India<\/a> [AIR 1967 SC 1889], this Court was
\nconcerned with inter se seniority of the employees drawn from two different
\nsources in different situations.\n<\/p>\n
Such is not the position here.  The Appellants herein are borne in the
\ncadre of the Centralized Services by reason of provision of a statute.  The
\nstatute provides for constitution of the Centralized Services.  The State
\nGovernment has framed Rules, which having validly been made would be
\ndeemed to be a part of the statute.\n<\/p>\n
Absorption of the deputationists, on the other hand, would depend
\nupon an arrangement, which may be made by the State being not a part of
\nthe statutory Rule.  They would, thus, be borne in the cadre in terms of the
\ndirections of the State in exercise of its residuary power.\n<\/p>\n
In Ram Janam Singh (supra), this Court laid a distinction between
\nthose who were in the services of Army during emergency and who had
\njoined Army after the emergency.  It was held that those who have served
\nthe country during emergency formed a class by themselves and if such
\npersons have been treated as a separate class for obtaining benefit in the
\nmatter of seniority, no grievance could be raised on the ground that such
\nclassification would be upheld on the touchstone of Articles 14 and 16 of the
\nConstitution of India.  Those employees who joined Army after emergency
\ncannot claim extension of such benefits as a matter of right.\n<\/p>\n
In R.S. Makashi & Ors. vs. I.M. Menon & Ors.<\/a> [(1982) 1 SCC
\n379], this Court was considering a case where the staff of a new department
\nhad been drawn from four different sources.\n<\/p>\n
Thus, in a case where employees were drawn from different sources,
\nalthough as part of single scheme, which was considered to be a special
\nsituation, was formulated in that behalf, this Court opined:\n<\/p>\n
“When personnel drawn from different sources are
\nbeing absorbed and integrated in a new department, it is
\nprimarily for the government or the executive authority
\nconcerned to decide as a matter of policy how the
\nequation of posts should be effected.  The courts will not
\ninterfere with such a decision unless it is shown to be
\narbitrary, unreasonable or unfair, and if no manifest
\nunfairness or unreasonableness is made out, the court will
\nnot sit in appeal and examine the propriety or wisdom of
\nthe principle of equation of posts adopted by the
\nGovernment.  In the instant case, we have already
\nindicated our opinion that in equating the post of Supply
\nInspector in the CFD with that of Clerk with two years’
\nregular service in other government departments, no
\narbitrary or unreasonable treatment was involved.”\n<\/p>\n
Despite the fact that the Court held that a rule whereby full benefits
\nhaving been given and two years’ period had been reduced is not ultra vires
\nit was stated:\n<\/p>\n
“The reasons stated by the learned Single Judge of
\nthe High Court for declaring the aforesaid rule to be
\narbitrary and violative of Article 16 of the Constitution
\ndo not appeal to us as correct or sound.  Almost the entire
\nreasoning of the learned Single Judge is based on an
\nassumption that there is an invariable “normal rule” that
\nseniority should be determined only on the basis of the
\nrespective dates of appointment to the post and that any
\ndeparture from the said rule will be prima facie
\nunreasonable and illegal.  The said assumption is devoid
\nof any legal sanction.  We are unable to recognize the
\nexistence of any such rigid or inflexible rule.  It is open
\nto the rule-making authority to take a note of the relevant
\ncircumstances obtaining in relation to each department
\nand determine with objectivity and fairness what rules
\nshould govern the inter se seniority and ranking of the
\npersonnel working in the concerned departments and the
\ncourts will only insist that the rules so formulated should
\nbe reasonable, just and equitable.  Judged by the said test
\nof reasonableness and fairness, the action taken by the
\nGovernment in equating the clerical personnel which had
\nrendered two years’ regular service in other departments
\nwith the temporary Supply Inspectors of the CFD and in
\ndirecting as per impugned Rule 4(a) that their inter se
\nseniority shall be determined with reference to the length
\nof service calculated on the basis of the said equation
\ncannot be said to be in any way discriminatory or illegal.
\nWe are unable to accept as correct the view expressed by
\nthe learned single Judge of the High Court that “while
\nfixing the seniority in the higher post, it is not open to
\ntake into consideration any service rendered in the lower
\npost and that by itself spells out discrimination.”  Firstly,
\nit is not correct to regard the post of a regular Clerk in the
\nother departments as lower in grade in relation to that of
\na Supply Inspector in the CFD. Further, in S.G.
\nJaisinghani v. Union of India, this Court has pointed out
\nthat in the case of recruitment to a service from two
\ndifferent sources and the adjustment of seniority between
\nthem a preferential treatment of one source in relation to
\nthe other can legitimately be sustained on the basis of a
\nvalid classification, if the difference between the two
\nsources has a reasonable relation to the nature of the
\nposts to which the recruitment is made.  In that case, this
\nCourt upheld the provision contained in the seniority
\nrules of the Income Tax Service, whereby a weightage
\nwas given to the promotees by providing that three years
\nof outstanding work in Class II will be treated as
\nequivalent to two years of probation in Class I (Grade II)
\nService.   ”\n<\/p>\n
In Wing Commander J. Kumar vs. Union of India & Ors.<\/a> [(1982)
\n2 SCC 116, this Court negatived the contention that any employee had
\nacquired vested right to have his seniority reckoned with reference to the
\ndate of his permanent secondment and to all officers joining the organisation
\non subsequent dates ranked only below him.  The question, which fell
\ntherein for consideration was as to whether the principle enunciated in Rule
\n16 can be said to be unreasonable or arbitrary.  The Court took into
\nconsideration the factual aspect of the matter and held that it will not be
\nreasonable, just or fair to determine the seniority of the permanently
\nseconded service personnel merely on the basis of the date of their
\nsecondment to the Organization.\n<\/p>\n
 In that case also Officers from three services holding different ranks
\nwere inducted into the R & D Organisation.  Unreasonable consequence that
\nflowed from the acceptance of the arguments of the Appellant therein were
\nconsidered opining:\n<\/p>\n
” When due regard is had to all the aspects and
\ncircumstances, narrated above, it will be seen that the
\nprinciple adopted under the impugned rule of reckoning
\nseniority with reference to a date of attainment of the
\nrank of substantive Major\/equivalent strikes a reasonable
\nmean as it ensures to all the service officers in the R & D
\nthe fixation of seniority in the integrated cadre giving full
\ncredit to the length of service put in by them in their
\nrespective parent services.”\n<\/p>\n
In K. Madhavan & Anr. vs. Union of India & Ors. [(1987) 4 SCC
\n566], whereupon Mr. Verma placed strong reliance, this Court was
\nconsidering a case where deputation was made to CBI.  The said decision
\nwas rendered in a situation wherein the original Rule 5 of 1963 Rules
\nproviding for 85% of the recruitment by way of transfer or deputation was
\naltered to 75%.  In that case, the earlier services rendered by the Appellants
\ntherein were directed to be considered having regard to the statutory rules
\ngoverning the field.  Therein no question of a person joining the services
\nafter resigning from his old post arose.  It is only in that situation, the Court
\nopined that there was not much difference between deputation and transfer.\n<\/p>\n
A difference between transfer and deputation would be immaterial
\nwhere an appointment by transfer is permissible, particularly in an
\norganization like CBI where personnel are drawn from different sources by
\nway of deputation.  It is one thing to say that a deputationist may be
\nregarded as having been appointed on transfer when the deputation is from
\none department of the Government to another department, but it would be
\nanother thing to say that employees are recruited by different Statutory
\nAuthorities in terms of different statutory rules. In a given case, the source of
\nrecruitment, the qualification, etc., may be different in different
\norganizations.  The Statutory Authorities, it is trite, are not and cannot be
\ntreated to be the departments of the Government.  Their employees are
\ngoverned by the rules applicable to them.  Their services are not protected
\nunder Article 311 of the Constitution.\n<\/p>\n
The State can compel an employee to go on deputation from its parent
\ndepartment to another Public Sector Undertaking unless a statutory rule
\nexists in this behalf.  In absence of such a rule, no employer can force an
\nemployee to join the services of another employer.  Thus, K. Madhavan
\n(supra), in our opinion, has no application in the instant case.\n<\/p>\n
K. Anjaiah & Ors. vs. K. Chandraiah & Ors.<\/a> [(1998) 3 SCC 218
\nwas again a case where this Court was concerned with multi source
\nrecruitment.  In that case construction of Regulation 9 came under
\nconsideration, which is to the following effect:\n<\/p>\n
“9. (1) The persons drawn from other departments will
\ncarry on their service and they will be treated as on other
\nduty for a tenure period to be specified by the
\nCommission or until they are permanently absorbed in
\nthe Commission whichever is earlier.\n<\/p>\n
      (2) The services of those staff members working in
\nthe Commission on deputation basis and who opted for
\ntheir absorption in the Commission, shall be appointed
\nregularly as the staff in the Commission, in the cadre to
\nwhich they belong, as per the orders of Government
\napproving their appointments batch by batch and to
\ndetermine the seniority accordingly. For this purpose the
\nCommission may review the promotions already
\naffected.”\n<\/p>\n
Therein, thus, existed a provision for appointment by way of
\nabsorption of the deputationist.  The said Regulation was declared
\nunconstitutional by the Tribunal.  This Court, however, having regard to the
\nfact situation obtaining therein, thought it fit to uphold the Regulations
\nstating:\n<\/p>\n
“..that the phraseology used in Regulation 9(2) is no
\ndoubt a little cumbersome but it conveys the meaning
\nthat the total length of service of these deputationists
\nshould be taken into account for determining the inter se
\nseniority in the new service under the Commission and
\nthe past service is not being wiped off. We find
\nconsiderable force in this argument and reading down the
\nprovision of Regulation 9(2) we hold that while
\ndetermining the inter se seniority of the deputationists in
\nthe new cadre under the Commission after they are
\nfinally absorbed, their past services rendered in the
\nGovernment have to be taken into account. In other
\nwords the total length of service of each of the employees
\nwould be the determinative factor for reckoning their
\nseniority in the new services under the Commission.”\n<\/p>\n
Such a finding was, thus, arrived at by way of reading down the Rules
\nso as to uphold the constitutionality of the said provision and not by laying
\nany law in that behalf upon interpreting Rule 9(2).\n<\/p>\n
Having noticed the afore-mentioned decisions of this Court, we may
\nnow notice Sub-Inspector Rooplal & Anr. (supra), which is the sheet
\nanchor of the judgment rendered by the High Court.  In that case, this Court
\nwas concerned with interpretation of Rule 5(h) of the Delhi Police
\n(Appointment and Recruitment) Rules, 1980 providing that if the
\nCommissioner is of the opinion that it is necessary or expedient in the
\ninterest of work so to do, he may make appointment(s) to all non-gazetted
\ncategories of both executive and ministerial cadres of the Delhi Police on
\ndeputation basis and by drawing suitable persons from any other State,
\nUnion Territory, Central police organization or any other force.  The
\nAppellants therein were deputed on transfer from BSF to the Delhi Police
\npursuant to the aforementioned provisions.  Rule 5(h) of the said rules
\nempowered the Authority to appoint the employees of other departments
\ndrawn by way of deputation depending upon the need of the Delhi Police.
\nThere was no seniority rule.  Seniority in that case was sought to be
\ndetermined by way of an executive order, which in turn was issued on the
\nbasis of a Memorandum dated 29.5.1986 issued by the Government of India.
\nThe Memorandum in question was neither made public nor the existence
\nthereof was made known to any person involved in the controversy.  The
\nsaid Memorandum was not made ipso facto applicable to the employees.  In
\nthe aforementioned factual backdrop referring to R.S. Makashi & Ors.
\n(supra) and Wing Commander J. Kumar (supra),  this Court observed:\n<\/p>\n
“.Therefore, it is reasonable to expect that a
\ndeputationist, when his service is sought to be absorbed in
\nthe transferred department would certainly have expected
\nthat his seniority in the parent department would be
\ncounted. In such a situation, it was really the duty of the
\nrespondents, if at all the conditions stipulated in the
\nimpugned memorandum were applicable to such person, to
\nhave made the conditions in the memorandum known to
\nthe deputationist before absorbing his services, in all
\nfairness, so that such a deputationist would have had the
\noption of accepting the permanent absorption in the Delhi
\nPolice or not.”\n<\/p>\n
  In that case a Coordinate Bench of the Tribunal had opined that those
\npersonnel who were drawn from other departments were entitled to get their
\npast services counted for the purpose of seniority.  The said decision attained
\nfinality.  In the case of the Appellant herein, the benefit of the said judgment
\nwas not extended and the question was sought to be reopened stating that the
\npost of Sub-Inspector in BSF was not equal to the post of Sub-Inspector in
\nthe Delhi Police.  The relevant part of the Memorandum issued on
\n29.5.1986, which was relied upon, reads thus:\n<\/p>\n
“Even in the type of cases mentioned above, that
\nis, where an officer initially comes on deputation and is
\nsubsequently absorbed, the normal principles that the
\nseniority should be counted from the date of such
\nabsorption, should mainly apply. Where, however, the
\nofficer has already been holding on the date of absorption
\nin the same or equivalent grade on regular basis in his
\nparent department, it would be equitable and appropriate
\nthat such regular service in the grade should also be taken
\ninto account in determining his seniority subject only to
\nthe condition that at the most it would be only from the
\ndate of deputation to the grade in which absorption is
\nbeing made. It has also to be ensured that the fixation of
\nseniority of a transferee in accordance with the above
\nprinciple will not effect any regular promotions made
\nprior to the date of absorption. Accordingly it has been
\ndecided to add the following sub-para (iv) to para 7 of
\ngeneral principles communicated vide OM dated 22-12-
\n1959:\n<\/p>\n
 ‘(iv) In the case of a person who is initially taken
\non deputation and absorbed later (i.e. where the
\nrelevant recruitment rules provide for “transfer on
\ndeputation\/transfer”), his seniority in the grade in
\nwhich he is absorbed will normally be counted
\nfrom the date of absorption. If he has so ever been
\nholding already (on the date of absorption) the
\nsame or equivalent grade on regular basis in his
\nparent department, such regular service in the
\ngrade shall also be taken into account in fixing his
\nseniority, subject to the condition that he will be
\ngiven seniority from
\n the date he has been holding the post on
\ndeputation, or
\n the date from which he has been appointed
\non a regular basis to the same or equivalent
\ngrade in his parent department, whichever is
\nlater.’ ”\n<\/p>\n
The interpretation of clause (iv) and in particular, the words
\n“whichever is later” came up for consideration in the said decision and on
\ninterpretation of the Rule it was held that the earlier decision in R.S.
\nMakashi & Ors. and Wing Commander J. Kumar would be applicable.
\nIt was, however, of some interest to note it was held that such a right of the
\nAppellants-petitioners therein could not have been taken away in the garb of
\nan Office Memorandum.  In the aforementioned fact situation, the law was
\nstated in the following terms:\n<\/p>\n
“It is clear from the ratio laid down in the above
\ncase that any rule, regulation or executive instruction
\nwhich has the effect of taking away the service rendered
\nby a deputationist in an equivalent cadre in the parent
\ndepartment while counting his seniority in the deputed
\npost would be violative of Articles 14 and 16 of the
\nConstitution. Hence, liable to be struck down. Since the
\nimpugned memorandum in its entirety does not take
\naway the above right of the deputationists and by striking
\ndown the offending part of the memorandum, as has been
\nprayed in the writ petition, the rights of the appellants
\ncould be preserved, we agree with the prayer of the
\nappellant-petitioners and the offending words in the
\nmemorandum “whichever is later” are held to be
\nviolative of Articles 14 and 16 of the Constitution, hence,
\nthose words are quashed from the text of the impugned
\nmemorandum. Consequently, the right of the appellant-
\npetitioners to count their service from the date of their
\nregular appointment in the post of Sub-Inspector in BSF,
\nwhile computing their seniority in the cadre of Sub-
\nInspector (Executive) in the Delhi Police, is restored.”\n<\/p>\n
For the said reasons only the executive instruction was held to be ultra
\nvires Articles 14 and 16 of the Constitution of India.  It was further held that
\nby reason of the Memorandum impugned therein the right of the
\ndeputationists could not have been taken away and in that view of the
\nmatter, the offending part of the Memorandum was struck down, as prayed
\nin the writ petition.  The rights of the Appellants were held to have been
\npreserved and the words “whichever is later” were held to be ultra vires
\nArticles 14 and 16 of the Constitution of India.\n<\/p>\n
The decisions referred to hereinbefore, therefore, lay down a law that
\npast services would only be directed to be counted towards seniority in two
\nsituations: (1) when there exists a rule directing consideration of seniority;
\nand (2) where recruitments are made from various sources, it would be
\nreasonable to frame a rule considering the past services of the employees
\nconcerned.\n<\/p>\n
The said decisions, in our considered view, have no application in this
\ncase, having regard to the provisions of Section 5-A of the Act, in terms
\nwhereof no provision exists for recruitment of deputationists.  Recruitment
\nof deputationists, in fact, is excluded therefrom.\n<\/p>\n
In the instant case while exercising, as to its power under Rule 37(3),
\nthere was no embargo for the State Government to lay down conditions for
\npermanent absorption of employees working in one Public Sector
\nUndertaking to another. Laying down of such conditions and acceptance
\nthereof have been held not to be violative by this Court in some decisions to
\nwhich we may refer to now.\n<\/p>\n
In Government of Andhra Pradesh & Ors. vs. M.A. Kareem &
\nOrs.<\/a> [(1991) Supp. 2 SCC 183], this Court made a distinction between
\nappointments from one cadre to another, stating:\n<\/p>\n
“.It has to be appreciated that the cadre of the Chief
\nOffice is altogether different from cadre of the district
\npolice offices\/units where the respondents were earlier
\nappointed and they were not liable to be transferred to the
\nChief Office. The service conditions at the Chief Office
\nwere better, which was presumably the reason for the
\nrespondents to give up their claim based upon their past
\nservices. It is true that the differential advantage was not
\nso substantial as to attract every LDC working in the
\ndistrict offices\/units, and in that situation the letter
\nAnnexure ‘B’ had to be circulated. However, so far as the
\nrespondents and the two others were concerned, they
\nfound it in their own interest to forgo their claim of
\nseniority on the basis of their past services and they did
\nso.”\n<\/p>\n
  In U.P. Awas Evam Vikas Parishad & Ors. vs. Rajendra
\nBahadur Srivastava & Anr.<\/a> [(1995) Supp.4 SCC 76], this Court opined:\n<\/p>\n
“..In view of the unequivocal undertaking given by the
\nfirst respondent, it is no longer open to him to contend
\nthat his dismissal (sic termination) order of 1971 was
\nillegal. He approached the High Court in 1991 seeking to
\nquash his termination order of 1971 after securing
\nconditional reinstatement. His challenge after his
\nappointment on his representation and acceptance of
\nconditions subject to which he was to be appointed is an
\nattempt to overreach his goal in a circuitous route. It is
\nhard to accept that within a short period of five months
\nhe has shown such a remarkable capabilities in
\ndischarging duties as appeared to be commendable to the
\nofficers recommended in the letters relied on by the
\nrespondent.”\n<\/p>\n
Yet again in Union of India & Anr. vs. Onkar Chand & Ors.<\/a>
\n[(1998) 9 SCC 298], this Court was considering the effect of  clause 7(iii) of
\nthe Recruitment Rules, which was applicable therein.  The said rule reads
\nthus:\n<\/p>\n
\t“Where a person is appointed by transfer in
\naccordance with provision in the Recruitment Rules
\nproviding for such transfer in the event of non-
\navailability of a suitable candidate by direct recruitment
\nor promotion such transferees shall be grouped with
\ndirect recruits or promotees, as the case may be, for the
\npurpose of para 6 above. He shall be ranked below all
\ndirect recruits or promotees, as the case may be, selected
\non the same occasion.”\n<\/p>\n
In that case, the Respondent was permanently absorbed on 31.12.1977
\nand interpreting the said Rules, this Court held that he must, therefore, take
\nhis seniority below the persons in the department already in the cadre on that
\ndate.  It was further held:\n<\/p>\n
“..On these factors, one cannot find fault with the
\nfixation of seniority of the said Onkar Chand by the
\nappellants, which was challenged before the Tribunal.
\nThe Tribunal was not right in holding that the services
\nrendered by the said Onkar Chand as a deputation
\npromotee in the officiating cadre of ACIO-II from 2-1-
\n1978 has to be reckoned. The earlier ad hoc promotion as
\nACIO-II being against the deputation quota that service
\ncannot be claimed by a deputationist once he opted for
\npermanent absorption in the department. If he wanted to
\ncontinue the seniority in the deputation quota by running
\nthe risk of being repatriated to his parent department, he
\nought not to have opted for permanent absorption. After
\nopting for the permanent absorption, he cannot claim the
\nbenefits of absorption as well as the service put in by him
\nin the deputation quota as ACIO-II.”\n<\/p>\n
This Court in Anand Chandra Dash vs. State of Orissa & Ors.<\/a>
\n[(1998) 2 SCC 560], while considering a reverse case, i.e, when an
\nemployee who was working as Senior Auditor in Revenue and Excise
\nDepartment and subsequently applied for the post of Senior Auditor in
\nLabour Department, opined:\n<\/p>\n
“..We find sufficient force in the aforesaid contention
\nof the learned counsel appearing for the appellant. That
\nthe appellant was appointed as a Senior Auditor on being
\nduly selected by the Member, Board of Revenue on
\n28-10-1966 is not disputed. It is also not disputed that his
\nservices were brought over to the Labour Department on
\nrequisition being made to all the government departments
\nand on his name being sponsored by the Revenue
\nDepartment. It is no doubt true that the Labour
\nDepartment had indicated that the seniority will be
\ndetermined on the basis of the date of joining of the
\nLabour Department itself but the appellant had at no
\npoint of time agreed to the said condition, and on the
\nother hand, unequivocally expressed his unwillingness to
\ncome over to the Labour Department by letter dated
\n6-11-1970 and without consideration of the same the
\nRevenue Department relieved him requiring him to join
\nin the Labour Department.”\n<\/p>\n
It was thus, open to the Respondents herein not to agree to in spite of
\nthe said conditions as they had already been working with a statutory
\nauthority, they, however, expressly consented to do so.  They must have
\nexercised their option, having regard to benefits to which they were entitled
\nto in the new post.  Once such option is exercised, the consequences attached
\nthereto would ensue.\n<\/p>\n
[ See HEC Voluntary Retd. Emps. Welfare Soc. & Anr. vs. Heavy
\nEngineering Corporation Ltd. & Ors.<\/a> [JT 2006 (3) SC 102]
\nThere is another aspect of the matter.  The Appellants herein were not
\njoined as parties in the writ petition filed by the Respondents. In their
\nabsence, the High Court could not have determined the question of inter se
\nseniority.  [See Prabodh Verma & Ors. vs. State of U.P. & Ors. (AIR
\n1985 SC 167).]    In Ram Janam Singh (supra) this Court held:\n<\/p>\n
“…It is now almost settled that seniority of an officer
\nin service is determined with reference to the date of his
\nentry in the service which will be consistent with the
\nrequirement of Articles 14 and 16 of the Constitution.  Of
\ncourse, if the circumstances so require a group of
\npersons, can be treated a class separate from the rest for
\nany preferential or beneficial treatment while fixing their
\nseniority.  But, whether such group of persons belong to
\na special class for any special treatment in matters of
\nseniority has to be decided on objective consideration
\nand on taking into account relevant factors which can
\nstand the test of Articles 14 and 16 of the Constitution.
\nNormally, such classification should be by statutory rule
\nor rules framed under Article 309 of the Constitution.
\nThe far-reaching implication of such rules need not be
\nimpressed because they purport to affect the seniority of
\npersons who are already in service.”\n<\/p>\n
There is yet another aspect of the matter, which cannot be lost sight
\nof.  This Court, in D.R. yadav & Anr. vs. R.K. Singh & Anr. [(2003) 7
\nSCC 110], having regard to the statutory scheme, opined:\n<\/p>\n
“What was, therefore, relevant for the purpose of
\ndetermination of seniority even in terms of Rule 7 of the
\n1985 Rules, was the continuous service rendered by the
\nemployees concerned “on similar posts”, which would
\nmean posts which were available having been legally
\ncreated or borne on the cadre.\n<\/p>\n
The ad hoc or temporary promotion granted to the
\nappellants on 3-5-1986 and 13-1-1987 respectively on
\nnon-existent post of Assistant Executive Engineer would
\nnot, therefore, confer any right of seniority on them.
\nThus, for all intent and purport for the purpose of
\ndetermination of seniority, the appellants were not
\npromoted at all.  Once they have been absorbed with
\nRespondent 1 and other employees similarly situated,
\ntheir inter se seniority would be governed by the statutory
\nrules operating the field.  The case of the appellants vis-
\n`-vis Respondent 2 although may be governed by the
\nspecial rules, in terms of Rule 7, the same has to be
\ndetermined on the criterion of continuous length of
\nservice including the service rendered in a Development
\nAuthority, Nagar Mahapalika, Nagarpalika or
\nImprovement Trust on similar posts.  The appellants, it
\nwill bear repetition to state, although were promoted at
\none point of time on purely ad hoc basis to the post of
\nAssistant Executive Engineer as the said posts even in
\ntheir parent authority were not of similar type, the same
\nwould not be relevant for the purpose of determining the
\ninter se seniority.  If the rule of continuous service in
\nsame and similar posts is to be resorted to, the date of
\ninitial appointment would be a relevant criterion therefor.
\n[See M. Ramchandran v. Govind Ballabh<\/a> (1999) 8 SCC
\n592, K. Anjaiah v. K. Chandraiah<\/a> (1998) 3 SCC 218,
\nVinod Kumar Sharma v. State of U.P. (2001) 4 SCC 675
\nand S.N. Dhingra v. Union of India<\/a> (2001) 3 SCC 125.]<\/p>\n
xx  \t\txx\t\txx\t\txx<\/p>\n
As the post of Assistant Executive Engineer was
\nnot a cadre post, the appellants cannot be said to have
\nbeen working on a higher post for the purpose of Rule 7
\nof the 1985 Rules.”\n<\/p>\n
For the reasons aforementioned, the impugned judgment cannot be
\nsustained, which is set aside accordingly.\n<\/p>\n
However, in the event Respondent Nos.2 to 4 and 6 (intervener)
\nherein intend to question the validity of the notification dated 9\/12\/2002, it
\nwould be open to them to do so, if they are aggrieved thereby.  It is made
\nclear that we have not gone into the question of the validity or otherwise
\nthereof.\n<\/p>\n
The appeals are allowed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indu Shekhar Singh & Ors vs State Of U.P. & Ors on 28 April, 2006 Author: S.B. Sinha Bench: S.B. Sinha, P.P. Naolekar CASE NO.: Appeal (civil) 6960 of 2005 PETITIONER: Indu Shekhar Singh & Ors. RESPONDENT: State of U.P. & Ors. DATE OF JUDGMENT: 28\/04\/2006 BENCH: S.B. Sinha & P.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-242185","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndu Shekhar Singh & Ors vs State Of U.P. & Ors on 28 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indu-shekhar-singh-ors-vs-state-of-u-p-ors-on-28-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indu Shekhar Singh & Ors vs State Of U.P. & Ors on 28 April, 2006 - 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