TMI Blog2003 (7) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 deals with the staff of the said authority. Sub-section (2) of Section 5 of 1973 Act contemplates that subject to such control and restrictions as may be determined by general or special orders of the State Government, the authority may appoint such number of other officers and employees as may be necessary for the efficient performance of its functioning. The reason for the said enactment inter alia is stated to be: In the developing areas of the State of Uttar Pradesh the problems of town planning and Urban development need to be tackled resolutely. The existing local bodies and other authorities in spite of their best efforts have not been able to cope with these problems to the desired extent. In order to bring about improvement in this situation, the State Government considered it advisable that in such developing areas, Development Authorities patterned on the Delhi Development Authority be established. As the State Government was of the view that the Urban development and planning work in the State had already been delayed it was felt necessary to provide for early establishment of such authorities. By reason of the provisions of the said Act, thus, other statutes g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ika or Municipal Corporation etc. stood transferred thereto. Pursuant to or in furtherance of applications having been invited to fill up the posts of Assistant Engineer (C), the appellants applied therefor and were subsequently appointed. Appellant No. 1 joined the post of Assistant Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on 12.07.1979. Respondent No. 1, however, was admittedly appointed on or about 12.10.1976. The State Government thereafter created Development Authorities Centralised Service with effect from 22.10.1984 by inserting Section 5-A therein. In terms of Sub-Section (2) of Section 5-A, a person serving on the posts included in such service immediately before such creation shall finally or provisionally be absorbed in the Development Authorities Centralised Service if he was confirmed in his post or if he was holding temporary or officiating appointment, as the case may be. The appellants were absorbed in the posts of Assistant Engineer. It is not in dispute that Respondent No. 1 was provisionally promoted to the Post of Assistant Engineer on purely reference basis by an Office Memorandum dated 3rd May, 1986. Appellants were said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fixing of seniority and promotion of the claimant respondents within three months. It is not in dispute that two different rules relating to determination of seniority were operating in the field; one being a general rule known as 'The Uttar Pradesh Government Servants Seniority Rules, 1991'; the other being the special rules known as 'U.P. Development Authorities Centralised Service Rules, 1985' framed by the State of Uttar Pradesh in exercise of its powers conferred under Section 55 of the Uttar Pradesh Urban Planning and Development Act, 1973 read with Section 5-A thereof. RELEVANT STATUTORY PROVISIONS: The relevant rules of U.P. Development Authorities Centralised Service Rules, 1985 which are material for the purpose of this case read as under: PART II CADRE AND STRENGTH 3. (1) There shall be the following categories of the posts in the cadre of the service and they shall consist of the posts mentioned against them Service Posts included in the service Scales of Pay in Rs I to III Omitted IV. Town Planning Architectural 1. Mukhya Nagar Niyojak 1780-2300 2. Nagar Niyojak 1250-2050 3. Sahayak Nagar Niyojak 850-1720 4. Vastuvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding anything to the contrary contained in any other service rules made heretobefore. 4. In these Rules, unless there is anything repugnant in the subject or context, the expression - (f) 'service' means the service in which the seniority of the member of the service has to be determined; (g) 'service rules' means the Rules made under the proviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government regulating the recruitment and conditions of service of persons appointed to the relevant service; 6. Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. PRIMAL QUESTION: The dispute between the parties before the High Court as stated in the impugned judgment is as under: The crux of the matter in these petitions is fixation of seniority and consequential promotions. As mentioned earlier with effect from 12.6.1973 the Uttar Pradesh Planning and Development Ordinance, 1973 was promulgated for the purpose of creating va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case; the same would be of not much relevance as the seniority has to be determined in terms of Sub-Rule (1) of Rule 7 of 1985 Rules on the criteria of continuous length of service including the service rendered in a Development Authority, Nagar Mahapalika, Nagarpalika or Improvement Trust on similar posts, and as the manner for determination of continuous length of service is not provided in the said sub-rule, the general rule must be taken recourse to for the said purpose. In this connection our attention has been drawn to the cadre of Service contained in Rule 3 of the 1985 Rules. FINDINGS It appears that having regard to the absorption of the employees from different authorities in the Centralised Service on 22.10.1984, according to the High Court, some sort of chaos was created amongst the members of the Service. The High Court relying on or on the basis of a Division Bench decision of this Court in Mohan Karan's case (supra) held that the provisions of the Rules 1991 shall apply for the purpose of determination of inter se seniority. Therein it was held: 14. We have already extracted Rule 6 of these Rules, which relates to seniority where the appointments are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating in the same field, the doctrine of generalia specialiabus non derogant shall apply. It was so held in Chandra Prakash Tiwari (supra). But the question which arises for consideration in these appeals does not solely depend on the applicability of the general rules vis- -vis the special rules. It is true that the appellants were sought to be promoted to the Posts of Assistant Executive Engineer. The said posts, however, were not available. They were, therefore, absorbed ultimately in the posts of Assistant Engineer. The State of U.P. in its counter affidavit stated: It is stated that petitioner No. 1 was promoted on temporary basis by Lucknow Development Authority till further orders on the post of Assistant Executive Engineer It is relevant to mention that on 22.10.1984, the petitioners were working on the post of Assistant Executive Engineer. Upon creation of the U.P. Development Authorities Centralised Service, since there was no post of Assistant Executive Engineer in the said service, hence the petitioners were absorbed on the post of Assistant Engineer in the service. What was, therefore, relevant for the purpose of determination of seniority even in terms of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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