TMI Blog2006 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 6-Vijay Kumar) were appointed in U.P. Jal Nigam on 5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively. Several town planning authorities including Ghaziabad Development Authority were created by Uttar Pradesh Urban Planning and Development Act, 1973 ('the Act', for short) with a view to provide for development of certain areas of State of Uttar Pradesh according to the plans and for other matters incidental thereto. Section 4 of the Act empowers the State Government to issue a notification constituting a development authority for any development area. In exercise of the said power, the State of U.P. constituted various development authorities, including the Ghaziabad Development Authority. By reason of U.P. Act No. 21 of 1985, the State of U.P. inserted Section 5-A in the said Act to create centralized services of all the development authorities, Sub-sections 1 and 2 whereof read as under: -A (1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more 'Development Authorities Centralized Services' for such posts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 03 February, 1997 OFFICE ORDER For fixation of seniority of Shri Sushil Chandra Dwivedi, Assistant Engineer in Authority Centralised Services, the Government Order No. 416912/9Aa-5-91/94 dated 6.11.95 with respect to inclusion of service rendered by him in State Planning Institute was not found legal in view of Rule 7(1) of Authority Centralised Services Rules. Consequently, after consideration, the said order dated 6.1.95 is hereby cancelled. 2. As a result, in Authority Centralised Services on the post of Assistant Engineer, in the Seniority list declared vide Government Order No. 1596/9 Aa-5-95- 1235/95 dated 12.4.96, the seniority of Shri Dwivedi is ordered by the Governor to be fixed below Shri Anil Kumar Goel shown at serial no. 64 and in order of seniority at serial no. 6 above Shri Ramesh Kumar at serial 64A in order of seniority. Illegible Chief Secretary 4. The Respondents herein, admittedly, resigned from their services from U.P. Jal Nigam. The Respondent No. 2 accepted the said offer of the State in terms of his letter dated 27.8.1987 stating: With regard to the conditions stated in your Office memo referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.5.82 3. S.N. Tripathi 24.7.79 4. S.S. Verma 27.6.84 5. P.C. Pandey 12.10.84 6. Rakesh Kr. Shukla 15.5.82 7. Ajay Kr. Singh 24.4.82 In view of Rule 7 of the Uttar Pradesh Development Authorities Rules, 1985, the Appellants were placed above the Respondent Nos. 2, 3, 4 and 6 in the seniority list. Questioning the said orders, Respondent Nos. 2 to 4 herein filed a writ petition before the Allahabad High Court praying, inter alia, for the following relief: i. To issue a writ order or direction in the nature of mandamus commanding the respondents to give benefit of past service to the petitioners rendered by them in the parent department and to treat the petitioners for promotion or promote them when the juniors were considered and promoted else they shall suffer irreparable loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rules, whereas Jal Nigam being not a Development Authority and its services having not merged in the Centralised Service, Rule 7 could not have been applied in the fact of the present case, as in fact Rule 28 would apply hereto. (vi) An erroneous order cannot be made the basis for sustaining a plea of discrimination. II.(i) The Respondents did not have any fundamental right to be deputed to any other autonomous organization or being absorbed permanently and thus, the question as regard reckoning of their past services for the purpose of seniority was a matter which was within the exclusive domain of the State in respect whereof the High Court should not have exercised its power of judicial review. (iii) Reckoning of past services was directed to be made by this Court only in the cases: (a) where Army Officers were recruited during national emergencies and where such past services were directed to be counted in terms of the Rules; (b) where recruitment had been made from multi sources including that of deputation; (iii) The said principles would not, thus, apply to the present case having regard to the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d having regard to the fact that the conditions imposed for their absorption by the State were unfair and unreasonable, the same would be violative of Article 14 of the Constitution of India and in that view of the matter, the impugned judgment of the High Court is sustainable in law; (iii) There being not much difference between deputation and transfer, and the Respondents, being deputationists, must be regarded to have been appointed on transfer from Jal Nigam and hence, could not be denied an equivalent position in the transferee department, where for their past services could not have been ignored; (iv) Length of service being the ordinary law for reckoning seniority of the employees, the State of U.P. could not deny the benefits thereof to the Respondents; (v) Even assuming that the Respondent Nos. 2 to 4 gave concurrence to that effect that they would not be conferred the benefits of the services rendered in Jal Nigam, for fixation of seniority they are at least entitled to the seniority from the date of their deputation till the date of their absorption as the decision on their offer could not have been taken after an unreasonable period, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that if more than one order or appointment are issued in respect of any one selection, the seniority shall be mentioned in the combined order of appointment issued under Sub- rule (3) of Rule 25. (2) The seniority inter se of persons appointed directly on the result of any one selection, shall be the same as determined by the Commission or the Selection Committee, as the case may be: Provided that a candidate required 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. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. (4) Notwithstanding anything in Sub-rule (1) the inter se seniority of persons appointed by direct recruitment and by promotion shall be determined from the date of joining the service in the case of direct recruits and from the date of continuous officiation in the case of promotees and where the date of continuous officiation of promotee and the date of joining of the direct recruit is the same, the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment Authority on their own. They were presumed to be aware that they were not borne in the cadre of Centralised Services. The Rules do not provide for appointment by way of transfer. Appointment by way of absorption of a deputed employee would amount to fresh appointment which may be subject to the offer given by the Authority. The Development Authority is a statutory authority. So is the Jal Nigam. The Schedules appended to the Rules provide for posts to be filled up by promotion or by direct recruitment or by both. Schedule IV provides for the posts which were outside the purview of the Public Service Commission and are required to be filled up by promotion only, whereas Schedule V specifies those posts outside the purview of the Public Service Commission, but were to be filled up through direct recruitment only. It is not disputed that the State of U.P. has since issued a notification on 9.12.2002 whereby and whereunder Rule 7(1) of the Rules, 1985 stood substituted, in terms whereof the past services of only those officers and employees were to be counted who would finally be absorbed in the services in terms of Section 5-A(2) of the Act on the criteria of continuous leng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for the reason that till they were absorbed, they continued to be in the employment of the Jal Nigam. Furthermore, the said condition imposed is backed by another condition that the deputed employee who is seeking for absorption shall be placed below the officers appointed in the cadre till the date of absorption. The Respondent Nos. 2 to 4 accepted the said offer without any demur on 3.9.87, 28.11.91 and 6.4.87 respectively. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal. [See R.N. Gosain v. Yashpal Dhir AIR1993SC352 , Ramankutty Guptan v. Avara AIR1994SC1699 and Bank of India and Ors. v. O.P. Swarnakar and Ors. (2003)ILLJ819SC ] Further more, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service. 15. We may now look into some decisions of this Court. 16. In Ram Janam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duary power. 18. In Ram Janam Singh (supra), this Court laid a distinction between those who were in the services of Army during emergency and who had joined Army after the emergency. It was held that those who have served the country during emergency formed a class by themselves and if such persons have been treated as a separate class for obtaining benefit in the matter of seniority, no grievance could be raised on the ground that such classification would be upheld on the touchstone of Articles 14 and 16 of the Constitution of India. Those employees who joined Army after emergency cannot claim extension of such benefits as a matter of right. 19. In R.S. Makashi and Ors. v. I.M. Menon and Ors. [1982]2SCR69 , this Court was considering a case where the staff of a new department had been drawn from four different sources. Thus, in a case where employees were drawn from different sources, although as part of single scheme, which was considered to be a special situation, was formulated in that behalf, this Court opined: When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the government or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept as correct the view expressed by the learned single Judge of the High Court that while fixing the seniority in the higher post, it is not open to take into consideration any service rendered in the lower post and that by itself spells out discrimination. Firstly, it is not correct to regard the post of a regular Clerk in the other departments as lower in grade in relation to that of a Supply Inspector in the CFD. Further, in S.G. Jaisinghani v. Union of India [1967]65ITR34(SC) , this Court has pointed out that in the case of recruitment to a service from two different sources and the adjustment of seniority between them a preferential treatment of one source in relation to the other can legitimately be sustained on the basis of a valid classification, if the difference between the two sources has a reasonable relation to the nature of the posts to which the recruitment is made. In that case, this Court upheld the provision contained in the seniority rules of the Income Tax Service, whereby a weightage was given to the promotees by providing that three years of outstanding work in Class II will be treated as equivalent to two years of probation in Class I (Grade II) Service. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonnel are drawn from different sources by way of deputation. It is one thing to say that a deputationist may be regarded as having been appointed on transfer when the deputation is from one department of the Government to another department, but it would be another thing to say that employees are recruited by different Statutory Authorities in terms of different statutory rules. In a given case, the source of recruitment, the qualification, etc., may be different in different organizations. The Statutory Authorities, it is trite, are not and cannot be treated to be the departments of the Government. Their employees are governed by the rules applicable to them. Their services are not protected under Article 311 of the Constitution. The State can compel an employee to go on deputation from its parent department to another Public Sector Undertaking unless a statutory rule exists in this behalf. In absence of such a rule, no employer can force an employee to join the services of another employer. Thus, K. Madhavan (supra), in our opinion, has no application in the instant case. 22. K. Anjaiah and Ors. v. K. Chandraiah and Ors. [1998]2SCR35 was again a case where thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court was concerned with interpretation of Rule 5(h) of the Delhi Police (Appointment and Recruitment) Rules, 1980 providing that if the Commissioner is of the opinion that it is necessary or expedient in the interest of work so to do, he may make appointment(s) to all non-gazetted categories of both executive and ministerial cadres of the Delhi Police on deputation basis and by drawing suitable persons from any other State, Union Territory, Central police organization or any other force. The Appellants therein were deputed on transfer from BSF to the Delhi Police pursuant to the aforementioned provisions. Rule 5(h) of the said rules empowered the Authority to appoint the employees of other departments drawn by way of deputation depending upon the need of the Delhi Police. There was no seniority rule. Seniority in that case was sought to be determined by way of an executive order, which in turn was issued on the basis of a Memorandum dated 29.5.1986 issued by the Government of India. The Memorandum in question was neither made public nor the existence thereof was made known to any person involved in the controversy. The said Memorandum was not made ipso facto applicable to the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for transfer on deputation/transfer ), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has so ever been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from - - the date he has been holding the post on deputation, or - the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later. The interpretation of Clause (iv) and in particular, the words whichever is later came up for consideration in the said decision and on interpretation of the Rule it was held that the earlier decision in R.S. Makashi and Ors. and Wing Commander J. Kumar would be applicable. It was, however, of some interest to note it was held that such a right of the Appellants-petitioners therein could not have been taken awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision exists for recruitment of deputationists. Recruitment of deputationists, in fact, is excluded therefrom. In the instant case while exercising, as to its power under Rule 37(3), there was no embargo for the State Government to lay down conditions for permanent absorption of employees working in one Public Sector Undertaking to another. Laying down of such conditions and acceptance thereof have been held not to be violative by this Court in some decisions to which we may refer to now. 25. In Government of Andhra Pradesh and Ors. v. M.A. Kareem and Ors. 1990(2)SCALE493 , this Court made a distinction between appointments from one cadre to another, stating: ...It has to be appreciated that the cadre of the Chief Office is altogether different from cadre of the district police offices/units where the respondents were earlier appointed and they were not liable to be transferred to the Chief Office. The service conditions at the Chief Office were better, which was presumably the reason for the respondents to give up their claim based upon their past services. It is true that the differential advantage was not so substantial as to attract every LDC wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiating cadre of ACIO-II from 2-1-1978 has to be reckoned. The earlier ad hoc promotion as ACIO-II being against the deputation quota that service cannot be claimed by a deputationist once he opted for permanent absorption in the department. If he wanted to continue the seniority in the deputation quota by running the risk of being repatriated to his parent department, he ought not to have opted for permanent absorption. After opting for the permanent absorption, he cannot claim the benefits of absorption as well as the service put in by him in the deputation quota as ACIO-II. 28. This Court in Anand Chandra Dash v. State of Orissa and Ors. [1998]1SCR81 , while considering a reverse case, i.e., when an employee who was working as Senior Auditor in Revenue and Excise Department and subsequently applied for the post of Senior Auditor in Labour Department, opined: ...We find sufficient force in the aforesaid contention of the learned Counsel appearing for the appellant. That the appellant was appointed as a Senior Auditor on being duly selected by the Member, Board of Revenue on 28-10-1966 is not disputed. It is also not disputed that his services were brought over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to affect the seniority of persons who are already in service. 30. There is yet another aspect of the matter, which cannot be lost sight of. This Court, in D.R. Yadav and Anr. v. R.K. Singh and Anr. AIR2003SC3935 , having regard to the statutory scheme, opined: What was, therefore, relevant for the purpose of determination of seniority even in terms of Rule 7 of the 1985 Rules, was the continuous service rendered by the employees concerned on similar posts , which would mean posts which were available having been legally created or borne on the cadre. The ad hoc or temporary promotion granted to the appellants on 3-5-1986 and 13-1-1987 respectively on non-existent post of Assistant Executive Engineer would not, therefore, confer any right of seniority on them. Thus, for all intent and purport for the purpose of determination of seniority, the appellants were not promoted at all. Once they have been absorbed with Respondent 1 and other employees similarly situated, their inter se seniority would be governed by the statutory rules operating the field. The case of the appellants vis-a-vis Respondent 2 although may be governed by the special rules, in ter ..... 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