Dharmendra Prasad & Others v. Sunil Kumar & Others, Civil Appeal No. 9248/2018 & SLP No. 24101/2019-6th December, 2019
CORAM: Two judge bench comprising of Justice L. Nageswara Rao & Justice Hemant Gupta
It was being held in this case
“To recast the seniority of the candidates in the order of merit by assigning their seniority as per the roster points.”
The facts of this case are that an advertisement was issued on 29th November, 2004, by the Uttarakhand Pey Jal Nigam (a body who created the Uttar Pradesh Water Works & Sewer Arrangement Act, 1975, to determine the seniority of the Junior Engineers strictly as per Regulation 23 of Uttar Pradesh Jai Nigam Subordinate Engineering Service Regulations, 1978. The advertisement was to fill vacancies of 241 posts of Junior Engineers (Civil). This included 104 posts of General Category, 52 of Backward Classes, 70 posts under Scheduled Castes & 15 posts under Scheduled Tribes. Another 38 posts were allotted for Junior Engineer (Mechanical). The advertisement contemplated that the reserved posts shall be filled up as per the reservation policy of Government of Uttaranchal, along with horizontal reservations for females, ex servicemen, handicapped people &dependents of freedom fighters will be made as per order of Uttaranchal Govt. One of the conditions in the letter of appointment was that the seniority will be determined later & a tentative seniority list was published on 14th September, 2010 based on the merit list based on the marks obtained & final list on 28th November, 2010. The list became a subject matter of challenge before the Uttarakhand Public Services Tribunal but it got dismissed there on 10th October 2017. A review petition was filed which also got dismissed there on 23rd November 2017.
Issue is as to if the list is to be re casted in the order of merit or not
Provisions of the circular examined are Regulation 6 which stated that the candidates belonging to SC, ST, BC & OC shall be in accordance with orders of Govt in force at the time of the recruitment.
Regulation 16(1) – When appointment has to be done due to vacancies, appointment authority shall review all applications received and inform the exam date for candidates to select and recruit suitable ones to the job. Producing admit card from the Nigam is a must in the exam hall.
Marks in the written test plus interview are to be totalled. If 2 or more candidates get the same mark then the one who got more in the written test is to be recruited & if their marks are equal in both the written test plus interview, then the one who scored high in diploma exam is to be placed higher in the merit list.
Regulation 17 – Appointing authority shall recommend the list of candidates made by the Selection Committee for appointment. Vacancies that arise or are likely to arise will be filled by the candidates of this list. If the appointing authority does not agree with the Selection Committee the matter will be taken to the Nigam & their decision shall be final.
Regulation 20 – On vacancies being created, appointing authority shall make appointment by taking the names of the candidates in the order they stand under Regulation 16(2) & 17 or 18
The Appellants contended that the Court has erred in law by upsetting the seniority list on basis of Regulation 23 as standalone provision & it is to be read with Regulation 16, 17 & 20. All regulations are to be read harmoniously & one regulation cannot be read in isolation as it defeats the merit prepared by the Selection Committee. Since appointments are made on terms of merit list, therefore Regulation 23 has to be read along with Regulation 20. The fact that some juniors are appointed earlier than the appellant cannot steal their jobs as the latter are higher in merit
The writ petitioners contended that they were appointed admittedly at an earlier point of time than the appellants. The latter did not raise grievances under Regulation 16, 17 & 20. Therefore date of appointment based on seniority as per Regulation 23is rightly done. Also seniority is to be fixed based upon the roster in the letter dated 31st August 2001 so date of appointment based on seniority as per Regulation 23is right.
It was observed by the HC that the method of appointment based on seniority is done only upon fortuitous circumstances as such appointments dehorn merit. Regulation mandates the appointing authority to make the appointments amongst the candidates in the order in which they stand in the list made under Regulation 16(2), 17 or 18. Any appointment made by the Nigam in contravention of statutory regulations cannot defeat the rights of the appellants only because they have not challenged the appointment of their juniors at an earlier point of time. So irrespective of the date of appointment the appointment in Regulation 23 has to be read in terms of Regulation 20 & is to be fixed as per the merit of the candidates determined by the Selection Committee.
Also it is observed that since there is no merit in the argument raised by the State that seniority has to be fixed as per Rule 5 of Uttarakhand Govt Service Security Rules, 2002, they are not adopted and applicable by the Nigam & also the members of the Nigam are not Govt servants, rules framed under proviso of Art 309 of the Constitution is not applicable as it is also not adopted by the Nigam.
Due to the above observations, it is observed the order of the Tribunal is not sustainable in law & seniority list with the roster circulated on 31st August, 2001 is to be mandatorily followed plus the approval of the State Govt dated 3rd May, 2005 to fill up 88 posts & the seniority list dated 28th November 2014 & the order of the HC dated 11th July, 2018 to be set aside.
View/Download Judgment: Dharmendra prasad v. sunil kumar
– Nardhana Ram
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