Manoj Misra, J.
As these two petitions raise common questions of law and fact and arise out of a seniority dispute inter se Junior Engineers working under the control of U.P. Rajya Vidyut Utpadan Nigam Ltd., with the consent of learned counsel for the parties, both the petitions were heard together and are being decided by a common judgment.
To have a clear understanding of the controversy involved in these two petitions, it would be appropriate to have a brief narration of relevant facts. The Electricity Service Commission of Uttar Pradesh, State Electricity Board (for short the Commission) issued an advertisement No. 3-ESC/1998, published in Employment News dated 02-08.01.1999, inviting applications for filling up a total of 500 posts of Junior Engineer Apprentice (Electrical & Mechanical). As, at that time, the State of Uttar Pradesh included the Hill districts, the posts so advertised also included posts for the Hill districts of the then existing State of U.P., which now fall in the State of Uttarakhand. Out of those 500 posts, 424 posts were allocated for Non-Hill Cadre and 76 posts were for Hill Cadre. The posts were also categorized subject-wise such as Electrical Engineering; Electronics; Instrumentation and Control; and Computer Engineering. The candidates were required to submit their option cadre-wise as well as category-wise. Pursuant to the advertisement, written examination was held on 08.08.1999 and 19.12.1999. Thereafter, interviews were held between 20.06.2000 to 28.06.2000.
However, before the results could be declared, a group of persons filed writ petition before the Lucknow Bench of this Court i.e. Writ Petition No. 2800 of 2000 (S/S) (R.P. Shukla & Others vs. Chief Engineer (Hydal), U.P. Jal Vidyut Nigam Ltd & others) claiming that 500 posts notified for direct recruitment also included 33.33% posts that were to be filled by promotion. It was prayed that direct recruitment process should be allowed only against 66.7% of the 500 posts so advertised. On this petition, on 24.05.2000, the Lucknow Bench of this Court restrained the respondents from filling up 33.33% of the 500 posts advertised.
Pursuant to the order passed by the Lucknow Bench of this Court, on 19.08.2000, the Commission declared result for only 66.66% of the vacancies notified by the advertisement. Candidates who were declared successful against 66.66 % of the notified vacancies were appointed as Junior Engineer on 11.01.2001.
The result of the remaining 33.33% of the notified posts was not declared. The petitioners in these two petitions were admittedly not in the merit list of candidates who were declared successful against 66.66% of the notified vacancies.
Later, upon discovering that the notified 500 posts were only those that were to be filled through direct recruitment, inasmuch as, 33.33% posts to be filled up by promotion had already been separated, application was filed in Writ Petition No. 2273 of 2004 (S/S) before the Lucknow Bench of this Court. The Court, upon being apprised that posts to be filled up by promotion had already been separated, on 19.10.2005 issued a direction to the respondents to declare full result of the selection held for direct recruitment on the post of Junior Engineers pursuant to the advertisement No.3-ESC/1998.
Consequently, the result for the remaining 33.33 % of the 500 advertised posts was declared. And, thereafter, on 28.04.2006, appointment orders were issued. The petitioners were amongst the selected candidates who were appointed, pursuant to the subsequent declaration of the result for the remaining 33.33.% of the 500 posts that were notified.
In the interregnum, prior to issuance of appointment order of the petitioners, appointments were made on the posts of Junior Engineers in the year 2005, by way of promotion, and in the year 2006, by way of direct recruitment. Further, before the petitioners could be born in the cadre, a seniority list was published on 16.02.2006 in which the aforesaid appointees of the year 2005 and of the year 2006 also figured. But, as, by that time, the petitioners had not even been appointed, their name did not figure in the seniority list.
After their appointment, the petitioners raised a claim that since they had been appointed pursuant to selection of the year 2000-2001 and the candidates of that selection were placed higher in the order of seniority, on the basis of their appointment made in the year 2001, the petitioners, who ought to have been appointed in the same year, but, on account of litigation, were denied appointment, should be given seniority from the date of appointment of those who were appointed by the same selection process. Therefore, it was prayed that the petitioners be placed higher in the order of seniority than those who were appointed in the year 2005 and 2006.
In respect of their claim for seniority, some of the petitioners had earlier come to this Court by filing writ petitions. On the said petitions, the Court disposed off the matter by directing the managing director of the corporation to decide the issue, after hearing the parties affected, within a specified period.
Writ A No. 38578 of 2014 has been filed by those petitioners whose claim for seniority was rejected by the department by order dated 24.01.2011 and, thereafter, they filed a claim petition no. 1621 of 2011 before the U.P. Public Service Tribunal, Lucknow (in short 'Tribunal'), which was dismissed by order dated 05.05.2014. The petitioners of Writ A No. 38578 of 2014 have prayed that the orders dated 05.05.2014 (passed by the Tribunal) and dated 24.01.2011 (passed by the department) be quashed and a direction be issued to the respondents to prepare a combined seniority list of Junior Engineers selected in pursuance of the advertisement dated 08.01.1999 by treating the petitioners at par with those who were appointed in the year 2001 on the basis of same selection process. An additional prayer for a direction upon the respondents to promote the petitioners on the post of Assistant Engineers by treating them at par with those who were appointed in the year 2001, on the basis of same selection process, has also been made.
Writ A No. 29022 of 2012 has been filed by those petitioners who had not filed claim petition before the Tribunal but are aggrieved by rejection of their claim for seniority by the department. They have accordingly challenged the order dated 24.05.2012 passed by the Managing Director, U.P. Rajya Vidyut Utpadan Nigam Ltd by which their representation to claim seniority with effect from the year 2001 i.e. the date of appointment of all those who faced the same selection process as the petitioners, was rejected. They have also claimed that they be assigned higher seniority position than those Juniors Engineers who were appointed by way of promotion in the year 2005 and those who were appointed by direct recruitment in the year 2006 on the basis of advertisement of the year 2005. The petitioners have also challenged the order dated 26.06.2012 by which persons alleged to be juniors to the petitioners have been granted officiating appointment on the post of Assistant Engineer.
In Writ A No. 29022 of 2012, we have heard Sri Rahul Sahai for the petitioners; Sri A.K. Mehrotra for the respondents 2 and 3; learned Standing Counsel for the respondent no.1; and Sri Abhishek Srivastava for the respondent no.13. However, no one had appeared on behalf of respondents 4 to 12 even though they were duly served with notice of the proceedings as indicated by the office report dated 18.08.2017.
In Writ A No. 38578 of 2014, we have heard Sri R.P. Mishra and Sri A.K. Giri for the petitioners; Sri A.K. Mehrotra for the respondent no. 3; learned Standing Counsel for the respondent no.1; and Sri Abhishek Srivastava for the respondent nos. 2 and 4.
The common ground for the petitioners in these two petitions to challenge their placement in the seniority list lower than the candidates who were appointed in the year 2005, by promotion, and in the year 2006, by direct recruitment, on the basis of advertisement of the year 2005, is that the petitioners' appointment had been delayed on account of litigation as well as court's interim order therefore, as, by subsequent court's order, the embargo placed on declaration of result was lifted, their appointment should relate back to the year when the other candidates from the same selection process were appointed. In support of their claim, the petitioners have placed reliance on a decision of the apex court in Balwant Singh Narwal and Ors. vs. State of Haryana and Ors.: 2008 (7) SCC 728 in which the apex court, following decision in Surendra Narayan vs. State of Bihar: 1998 (5) SCC 246, had observed that candidates who were selected against earlier vacancies but could not be appointed along with others of the same batch due to certain difficulty when appointed subsequently will have to be placed higher than those who were appointed against the subsequent vacancies.
In addition to above, the petitioners have also set up a case that the Electricity Service Commission had not properly prepared the merit list inasmuch as candidates having lower score than the petitioners were selected/ appointed against 66.66% of 500 seats in the year 2001 whereas the petitioners were selected for the remaining 33.33% seats in the year 2006.
In reply, the learned counsel for the respondents submitted that seniority is to be determined in accordance with U.P. State Electricity Board Servants Seniority Regulations-1998 (for short Regulations, 1998).
At this stage, we may observe that we have not been supplied legible complete typed copy of English translation of the Regulations, 1998. However, the learned counsel for the parties were in agreement that the relevant regulations 5 and 8 of the Regulations are pari materia Rules 5 and 8 of U.P. Government Servant Seniority Rules, 1991 (for short Seniority Rules, 1991).
The relevant Rules 5 and 8 of the Seniority Rules, 1991, which are pari materia Regulations 5 and 8 of Regulations, 1998 are extracted below:-
"5. Seniority where appointments by direct recruitment only.--Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be:
Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final:
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation.--Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection........
8. Seniority where appointments by promotion and direct recruitment. - (1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean of issuance of the order:
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection-
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, accordingly as the promotions are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection, the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
(1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order-
Promotee Second ............
Direct recruits and so on.
(2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order-
Promotee Second to Fourth ...........
Direct recruits Fifth ...........
Promotee Sixth to eighth ...........
Direct recruit and so on:
(i) where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
By referring to sub-regulation (1) of Regulation 8 of Regulation, 1998, it has been urged on behalf of respondents that seniority is to be determined from the date of the order of substantive appointment though it is open to the appointing authority to specify a particular back date with effect from which a person is substantively appointed. It has been urged that since, admittedly, the petitioners were appointed in the year 2006, after appointment of the promotees in the year 2005 as also direct recruitees of the year 2006, pursuant to an advertisement of the year 2005, in view of the sub-rule (1) of Rule 8, the petitioners cannot be placed higher than them in the order of seniority. It has been submitted that clause (ii) of the proviso to sub-rule (3) of Rule 8 specifically provides that where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made. Hence, the petitioners cannot be placed higher in seniority on the basis of their appointment against earlier vacancies. It has also been urged on behalf of respondents that the result of 33.33% seats was not declared and it was declared only after the order of the writ court in the year 2006 and, thereafter, appointment orders were issued therefore it cannot be said that the petitioners were selected along with those whose results were declared in the year 2001. It has further been contended that the petitioners have neither assailed their appointment to the extent it did not provide/confer notional seniority from back date nor they have assailed the validity of Regulations 5 and 8 which provide for the principles governing determination of seniority, therefore, the petitioners are not entitled for the benefit of seniority from the date others were appointed against 66.66% of the advertised posts that were filled pursuant to the selection initiated by advertisement of the year 1999.
On behalf of the respondents it was contended that it is well settled legal principle that mere selection does not confer an indefeasible right of appointment therefore seniority is ordinarily to be reckoned from the date of appointment. It was submitted that as the petitioners were not even born in the cadre by the date the other appointees of the year 2005 and 2006 were appointed, the petitioners' claim for seniority has no legal basis.
It has also been urged on behalf of the respondents that there is no specific challenge to the merit list prepared by the Commission. More over, the merit-list was prepared cadre as well as category wise. It has been submitted that it has not been specifically demonstrated as to how the merit-list was not legally justified and, hence, the Tribunal has specifically rejected the plea of the petitioners of Writ A No. 38578 of 2014 by its order dated 05.05.2014 while deciding issue no.1 in Claim Petition No. 1621 of 2011. It has also been urged that similarly the petitioners of Writ A No. 29022 of 2012 have not specifically assailed the merit-list prepared by the Commission and there is no specific pleading as to how the merit-list was bad in law, particularly, when the posts were divided into cadres (Hill and Non-Hill) as well categories.
Having noticed the rival submissions, on careful perusal of the record, we find that there is no dispute inter se parties as regards the fact that the posts advertised in the year 1999 were separated for Hill Cadre and Non-Hill Cadre. They were also sub-divided category-wise. We also find that the Tribunal in Claim Petition No. 1621 of 2011 has specifically dealt with the challenge laid to the merit-list prepared by the Commission and rejected the same while dealing with issue no.1. While deciding the said issue, the Tribunal had found that the merit list was declared cadre-wise and category-wise and that none of the petitioners could demonstrate that they secured marks higher than the cut off marks of the last selected candidate of the category in which they had participated. Likewise, in these two petitions there is no serious challenge laid to the finding returned by the Tribunal in that regard. Otherwise also, there is no serious challenge to the order of the managing director passed on the representation of the petitioners in respect to the said issue.
Under the circumstances, in absence of any specific challenge laid to the preparation of the merit-list as also keeping in mind that the Tribunal has returned a well considered finding on issue no.1 in Claim Petition No. 1621 of 2011, we are of the view that the petitioners have failed to demonstrate that the merit-list prepared by the Commission suffered from any legal error.
In respect of the plea taken by the petitioners that, they are entitled to at par seniority with 2001 appointees, in view of the apex court's decision in Balwant Singh Narwal's case (supra), as the petitioners had faced same selection process as the appointees of the year 2001 but their appointments got delayed only because of the litigation, we are of the view that the benefit of that judgment would not be available to the petitioners for the reasons that follow. In Balwant Singh Narwal's case (supra), the apex court had no occasion to deal with any specific rule governing determination of seniority as is there in the case at hand. Here sub regulation (1) of Regulation 8 of Regulations, 1998 specifically provides that seniority of persons appointed shall be determined from the date of the order of their substantive appointment. Proviso to sub regulation (1) of Regulation 8 confers power on the appointing authority to make order of appointment effective from a particular back date. But, admittedly, the petitioners were not appointed from any back date. Further, their results were declared only in the year 2006, pursuant to the direction given by the Writ Court and not with the appointees of the year 2001. It is not a case where they were declared selected along with the appointees of the year 2001 but could not be appointed on account of litigation. Here, direction by the writ court was that the vacancies itself should not be filled therefore, pursuant to the direction, the result of that number of vacancies was not even declared. Rather, the result was declared later, pursuant to which appointment orders were issued. In this scenario, clause (ii) of the proviso to sub-regulation (3) of Regulation 8 assumes importance, which provides that where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments, were made. This clearly indicates that even if it is considered that the appointments made in the year 2001 were short of the quota prescribed for direct recruitees, it would not confer right on direct recruitees of the year 2006 to claim appointment from the date earlier appointments were made against part of those vacancies that were advertised in the year 1999.
In so far as sub regulation (2) of Regulation 8 is concerned that governs seniority inter se persons appointed on the result of any one selection but not inter se persons who were appointed on the basis of separate selections. Admittedly, the persons who were appointed in the year 2001 against 66.66% vacancies were higher in the order of merit than the petitioners. Therefore, the petitioners, by taking aid of sub-regulation (2) of Regulation 8, cannot claim that their seniority should be reckoned from the year 2001 and not from the date of their substantive appointment as provided by sub-regulation (1) of Regulation 8.
In so far as the second proviso to Regulation 5 of the Regulations, 1998 is concerned that would apply to a case where the appointments are to be made only by direct recruitment. In a case, such as the matter at hand, where appointments are to be made both by direct recruitment as well as by promotion, the second proviso would not be applicable. The above view finds support from the decision of the Apex Court in the case of Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, where the apex court had occasion to deal with the true import of Rules 5 and 8 of the Seniority Rules, 1991 which are pari materia Regulations 5 and 8 of the Regulations, 1998. In that decision, the apex court in paragraph 28 of the judgment, as reported, held as under:-
"28. The word "only" in Rule 5 of the 1991 Rules is of significance and it becomes clear therefrom that Rule 5 of the 1991 Rules has no application at all for determination of inter se seniority of the 1991 and the 1994 appointees because the 1980 Rules provide for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion. It is only where service rules in the State of U.P. pro
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vide for appointments by direct recruitment alone that Rule 5 of the 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon the second proviso to Rule 5 of the 1991 Rules for determination of inter se seniority amongst the 1991 and the 1994 appointees, is, thus, misplaced." In Pawan Pratap Singh's case (supra), the apex court summarised legal principles governing determination of seniority as follows: "45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." In the instant case, as, in the context of the service regulations applicable, the appointment orders of the petitioners did not specify that they were appointed from a particular back date, keeping in mind that the service regulations clearly specify that seniority is to be reckoned from the date of the order of substantive appointment, the petitioners' claim for being placed above earlier appointees in the order of seniority cannot be accepted. Hence, both the petitions deserves dismissal and are, accordingly, dismissed. There is no order as to costs.