2006 Supreme(SC) 413

2006(5) Supreme 12
SUPREME COURT OF INDIA
S.B. Sinha and P.P. Naolekar, JJ.
Indu Shekhar Singh & Ors. — Appellants
versus
State of U.P. & Ors. — Respondents
Civil Appeal No. 6960 of 2005
With
Civil Appeal No. 6961 of 2005
Decided on 28-4-2006
Counsel for the Parties :
For the Appellants : Rakesh Dwivedi, Sr. Advocate, Vishwajit Singh, Vijay Kumar, Saad Shervan, Abhishek Chaudhary, Gaurav Bhatia, Adarsh Upadhyaya, Piyush Vats, Ajit, Ms. Bharti, Mrs. Vimla Sinha, Advocates.
For the Respondents : M.L. Verma, A.K. Srivastava, Jaideep Gupta, Sr. Advocates, Ashok Kumar Singh, Ms. Punam Kumari, Naresh Kumar Gaur, Satya Mitra, K.K. Mohan, Dr. Indra Pratap Singh, Garvesh Kabra, Anuvrat Sharma, Sanjay Kumar Singh, Ms. Reena Singh, T. Mahipal, Advocates.

IMPORTANT POINTS
1. 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.
2. Seniority is not a fundamental right. It is merely a civil right.

Headnote:(i) Uttar Pradesh Urban Planning and Development Act, 1973 — Section 4, 5A (as inserted by U.P. Act No. 21 of 1985) — U.P. Development Authority Centralised Services Rules, 1985 — Rules 7, 28 — Deputation — Determination of seniority — Appointments of respondents 2, 3, 4 & 6 made in U.P. Jal Nigam — State of U.P. constituted various development authorities, including Ghaziabad Development Authority — Respondents 2, 3, 4 & 6 were deputed to the Development Authority on various dates — Options were called for from officers of U.P. Jal Nigam to be absorbed in the authorized centralized service subject to conditions specified therein — It was stated that their past services rendered in U.P. Jal Nigam would not be reckoned for the purpose of determination of seniority — Respondents were placed below the appellants in the seniority list — In terms of the rules, there is no provision for appointment by way of transfer — Whether respondents can challenge these conditions specified for their absorption in development bodies as illegal — (No) — Whether High Court was justified in allowing respondents writ petitions — (No).

       Held : The terms and conditions of recruitment/appointment to the post, seniority and other terms and conditions of service are governed by statutory rules. The statute provides that only those, who were in the employment of the different Development Authorities, shall be borne to the cadre of the Central Services. The U.P. Jal Nigam was not a Development Authority. It was constituted under a different statute. It was an autonomous body. The employees working with Jal Nigam might have been deputed to the services of the Development Authorities, but only by reason thereof they did not derive any right to be absorbed in the services. Ordinarily, an employee has no legal right to be deputed to another organization. He has also no right to be permanently absorbed excepting in certain situation as was held by this Court. (Para 17)

       The Respondent Nos. 2 to 4 were deputed to the Ghaziabad Development 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 length of service, including the service rendered in Development Authority, Nagar Mahapalika, Nagar Palika or Improvement Trust on similar posts. The Respondent Nos. 2 to 4 were not and could not have been absorbed under Section 5-A(2) of the Act and thus evidently Rule 7(1) is not attracted. The only Rule, which provides for seniority, is Rule 28. Rules 7 and 28, as noticed hereinbefore, occur in different Chapters providing for different situations. (Para 18)

       The Respondent Nos. 2 to 4, therefore were not entitled to the benefits of Rule 7. In terms of the rules, there is no provision for appointment by way of transfer. There is also no provision for appointment on permanent absorption of the deputed employees. The only provision which in the fact situation obtaining in the present case would apply and that too in the event the State intended to absorb the employees of Jal Nigam, would be Section 7(1) of the Act and Sub-Rule (2) of Rule 37 of Rules, 1985. (Para 19)

       The Appellants herein are borne in the cadre of the Centralized Services by reason of provision of a statute. The statute provides for constitution of the Centralized Services. The State Government has framed Rules, which having validly been made would be deemed to be a part of the statute. (Para 27)

       Absorption of the deputationists, on the other hand, would depend upon an arrangement, which may be made by the State being not a part of the statutory Rule. They would, thus, be borne in the cadre in terms of the directions of the State in exercise of its residuary power. (Para 28)

       It was thus, open to the Respondents herein not to agree to in spite of the said conditions as they had already been working with a statutory authority, they, however, expressly consented to do so. They must have exercised their option, having regard to benefits to which they were entitled to in the new post. Once such option is exercised, the consequences attached thereto would ensue. (Para 53)

       However, in the event Respondent Nos. 2 to 4 and 6 (intervener) herein intend to question the validity of the notification dated 9-12-2002, it would be open to them to do so, if they are aggrieved thereby. It is made clear that we have not gone into the question of the validity or otherwise thereof. (Para 57)

       (ii) Service Law — Deputation And Transfer — Difference would be immaterial where an appointment by transfer is permissible — 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.

       Held : A difference between transfer and deputation would be immaterial where an appointment by transfer is permissible, particularly in an organization like CBI where personnel 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. (Para 36)

       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. (Para 37)

       (iii) Service Law — Seniority — Not a fundamental right — It is merely a civil right. (Para 20)