2015 Supreme(Raj) 1958
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Ajit Singh, Anupinder Singh Grewal, JJ.
Rajesh Pal and others - Appellants
Versus
Bhawani Singh Rathore & Ors. - Respondents
D.B. Special Appeal (Writ) Nos. 1090, 1122, 1489 of 2013.
Decided On : 19-11-2015
For the Appellants:Mr. Ashok Gaur, Sr. Counsel assisted by Mr. Ashwini Jaiman, Mr. R.N.Mathur, Sr. Counsel assisted by Mr. Rahul Chaudhary & Mr. Prateek Mathur, Mr. Rajendra Soni with Mr. Mohit Soni, Ms. Nayan Tara Soni, Advocates.
For the Respondents:Mr. Sanjeev Prakash Sharma, Sr. Counsel assisted by Mr. Gaurav Sharma, Advocate.
For the JDA:Mr. Ashish Kumar, Advocate.
The terms of appointment and undertaking given by the employees at the time of absorption in JDA barred them from claiming seniority based on past service.
Headnote:
JAIPUR DEVELOPMENT AUTHORITY - SENIORITY - ABSORPTION OF EMPLOYEES FROM AVAS VIKAS SANSTHAN - DATE OF JOINING - INTER SE SENIORITY - TERMS OF APPOINTMENT - UNDERTAKING - PAST SERVICE - RULES AND REGULATIONS - SUPREME COURT JUDGMENT - ABSORPTION RULES - DIRECT RECRUITMENT - ANOMALOUS SITUATION - CONFIRMATION - PROMOTION - DISTINGUISHED CASES - APPEAL DISMISSED.
Fact of the Case:
The appellants, former employees of Avas Vikas Sansthan (AVS), challenged the seniority list issued by Jaipur Development Authority (JDA) which placed them junior to the respondents, also former AVS employees, based on their date of joining in JDA. The appellants argued that their inter se seniority in AVS should be considered for determining seniority in JDA. The respondents contended that the terms of their appointment and undertaking given at the time of absorption in JDA barred them from claiming seniority based on past service.
Finding of the Court:
The court held that the appellants' inter se seniority in AVS could not be considered for determining seniority in JDA. The court relied on the terms of their appointment and undertaking, which stated that they had foregone the benefits of past service, including seniority. The court also noted that the Supreme Court, in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association, had held that past service could not be counted for any purpose, including seniority.
Issues: 1. Whether the inter se seniority of erstwhile employees of AVS should be determined based on their inter se seniority in AVS or on the basis of date of joining in JDA. 2. Whether the terms of appointment and undertaking given by the employees at the time of absorption in JDA barred them from claiming seniority based on past service.
Ratio Decidendi: 1. The court held that the inter se seniority of erstwhile employees of AVS could not be determined based on their inter se seniority in AVS, but rather on the basis of date of joining in JDA. The court relied on the terms of their appointment and undertaking, which stated that they had foregone the benefits of past service, including seniority. 2. The court also noted that the Supreme Court, in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association, had held that past service could not be counted for any purpose, including seniority.
Final Decision: The court dismissed the appeals, upholding the seniority list issued by JDA which was based on the date of joining.
JUDGMENT
1. - These special appeals arising out of the common order dated 19.09.2013 passed by the Single Bench are being decided by this judgment. The appellants were respondents in the writ petitions and some of the appellants were not party to the writ petition but they have also preferred the appeals as they are stated to be adversely effected by the judgment.
2. These intra court appeals are directed against the order of the Single Bench dated 19.09.2013 whereby the writ petitions preferred by the respondents herein were allowed and the seniority list dated 12.12.2006 as well as the consequential orders of promotion in pursuance to this seniority list were set aside.
3. The question which arises for adjudication in the instant appeals is whether the inter se seniority vis-a-vis erstwhile employees of the Avas Vikas Sansthan (hereinafter referred to as 'the AVS') on their appointment in the Jaipur Development Authority (hereinafter referred to as 'the JDA') could be determined on the basis of their inter se seniority in the AVS or on the basis of date of joining in the JDA.
4. In the year 1989, the AVS was constituted and registered as a society under the Societies Registration Act, 1860. The appellants as well as the respondents, after obtaining the qualification of Bachelor of Engineering, were appointed as Assistant Engineer in the AVS. However, the operations of AVS were financially unviable and it began to incur heavy losses which even prevented it from timely payment of salary to the employees after 01.12.1998. The State Government decided to dissolve the AVS vide Resolution dated 26.03.1999. The State Government, in order to mitigate the hardship of the employees of the AVS who would have been rendered unemployed, decided to adjust them against the vacant posts in other bodies of the State Government. After the decision of the Cabinet, the Chief Secretary issued a Cabinet memo on 10.03.1999 to the effect that the employees of the AVS will be absorbed/adjusted in the JDA and other local self Government organisations.
5. A screening committee was constituted for adjudging the suitability of different employees including the Engineers and the screening of the employees including the petitioners & respondents was done on 18.12.1999. The Deputy Secretary of the Urban Development & Housing Department, Government of Rajasthan wrote to the Commissioner, JDA and the Rajasthan Housing Board on 26.02.2000 clarifying that in pursuance of the Order No.101/99 dated 20.05.1999 of the Cabinet, the former employees and the Engineers of the erstwhile AVS would be appointed through direct recruitment on the lowest post in the JDA and no pay protection would be given. It was also mentioned that the past service rendered by them in the AVS will not be considered in the new department and they were to be paid minimum of the pay scale of post on which they were to be appointed. This order is annexed with the writ petition as Annexure-1. A proforma appointment order was also attached with this order and in terms of the condition No.11 thereof, the State Government had been empowered to transfer services of the employees during probation period to any other organisation. It was also specified that the employees were required to join within one month from the date of issuance of appointment order of the department concerned and in case they failed to do so, their appointment will be liable to be cancelled. A proforma affidavit was also attached to this order dated 26.02.2000. In pursuance to this appointment order, the respondents/petitioners along with some other persons were appointed on the lowest post of Junior Engineer in the JDA after interview held by the Department of Local Bodies in the month of December, 1999.
6. A list of employees of the erstwhile AVS who were to be appointed in JDA, Rajasthan Housing Board, UIT, Local Self Government and Panchayat Raj Department, was prepared wherein names were mentioned in the order of seniority in
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