2021 Supreme(SC) 776

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
D.Y. CHANDRACHUD, VIKRAM NATH, B.V. NAGARATHNA, JJ.
Ajay Kumar Shukla and Others – Appellants
Versus
Arvind Rai and Others – Respondents
Civil Appeal No(s). 5966 of 2021 (arising out of SLP (Civil) No(s). 5435 of 2020)
With
Ashish Kumar Srivastava and Others – Appellants
Versus
Rajesh Kumar Singh and Others – Respondents
Civil Appeal No(s). 5969 of 2021 (arising out of SLP (Civil) No(s). 8783 of 2020)
And
Manoj Kumar Shukla and Others – Appellants
Versus
Rajesh Kumar Singh and Others – Respondents
Civil Appeal No(s). 5967 of 2021 (arising out of SLP (Civil) No(s). 5706 of 2020)
And
Mahesh Chandra Badhani and Others – Appellants
Versus
Dharmendra Singh and Others – Respondents =
Civil Appeal No(s).5968 of 2021 (arising out of SLP (Civil) No(s). 5850 of 2020)
Decided On : 08-12-2021

IMPORTANT POINTS
(1) There is one cadre of Junior Engineers in Minor Irrigation Department and there has to be one seniority list of Junior Engineers. It is seniority list of cadre of Junior Engineers which would be feeder cadre for post of Assistant Engineers.
(2) Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right.
(3) In matters relating to service jurisprudence, it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then interest of all is represented and protected.

Headnote:

(A) Service Law – Seniority – Inter se seniority in One Selection of direct recruits – There was one selection for three streams i.e. Agricultural, Mechanical and Civil – There is one cadre of Junior Engineers in Minor Irrigation Department and there has to be one seniority list of Junior Engineers – Appointing Authority committed an error in manner in which seniority list was prepared by placing three select lists forwarded by Commission on different dates one after other en bloc as per date of receipt of three select lists – It is not the case either of private respondents, State or Commission that appointment letters have been issued separately as and when select lists were received – There shall be one list for one selection of direct recruits – Creating three separate lists for one selection was contrary to provisions contained in Rules 5 and 8 of Rules 1991 – Once it is established that seniority list was prepared in contravention to statutory provisions laid down in Rules 1991, seniority list could be interfered with – Appointing Authority would be bound by statutory rules and any violation or disregard to statutory rules would vitiate seniority list – Same would be arbitrary, de hors rules and in conflict with Articles 14 and 16 of Constitution – Only exception to above would be where there is unreasonable delay which is unexplained – Respondents have not been able to show any material which could clearly indicate that appellants had knowledge of three separate lists and preparation of seniority list on its basis – Plea to defend seniority list prepared contrary to statutory provisions on the ground of delay would be a difficult proposition – Such seniority list cannot be sustained or defended on the ground of delay of five years. [Rules 5 and 8 of Uttar Pradesh Government Servants Seniority Rules, 1991] (Paras 18, 20, 23, 27, 31 and 35)

(B) Service Law – Seniority – Inter se seniority in One Selection of direct recruits – It is seniority list of cadre of Junior Engineers which would be feeder cadre for post of Assistant Engineers – Junior Engineers of Agricultural stream of selection of year 2001, would have direct march over Junior Engineers selected in same selection of Mechanical and Civil streams, even though overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of Engineers of Mechanical and Civil streams – Appointing authority ought to have prepared a combined merit list based upon performance or proficiency on the basis of marks received in selection test as prepared by Commission – Otherwise, it would amount to denial of right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit – If seniority list is allowed to be sustained then Engineers who are more meritorious in Mechanical and Civil streams than Junior Engineers of Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all Junior Engineers of Agricultural stream selected in same selection are granted promotion – For these reasons also seniority list in question must go – Single Judge was right in his view in setting aside final seniority list and directing appointing authority for preparation of fresh seniority list in accordance with Rules 1991, be it Rule 5 or Rule 8 thereof – Impugned Judgment of Division Bench of High Court set aside and that of Single Judge maintained. [Rules 5 and 8 of Uttar Pradesh Government Servants Seniority Rules, 1991] (Paras 36, 40, 53 and 54)

(C) Service Law – Promotion – Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right – If a person who satisfies eligibility and criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her fundamental right. (Paras 36 and 38)

(D) Service Law – Service Jurisprudence – In matters relating to service jurisprudence, it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then interest of all is represented and protected – Impleadment of a few of affected employees would be sufficient compliance of principle of joinder of parties and they could defend interest of all affected persons in their representative capacity – Non-joining of all parties cannot be held to be fatal. (Para 47)

Facts of the case:

Present set of appeals preferred by the original writ petitioners before High Court assails correctness of judgement and order dated 04.12.2019 passed by Division Bench of the Allahabad High Court in Special Appeal No. 819 of 2019, in between Rajesh Kumar Singh and Another vs. Rajeev Nain Upadhyay and 24 Others whereby the Division Bench allowed appeal, set aside the judgment and order of Single Judge and dismissed the writ petition.

Findings of Court:

Single Judge, in the operative portion mentioned that a fresh seniority list be prepared in accordance with Rule 5 and apparently did not consider the effect of Rule 8, would not vitiate judgment inasmuch as the basis for preparation of seniority list of direct recruits was the same in both the Rules. It may be noted that there is no lis inter se between direct recruits and promotees.

Result : Appeals allowed.