Point of Law: Service matter - Seniority - The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

JUDGMENT :

DINESH KUMAR SINGH, J.

1. Present writ petition under Article 226 of the Constitution of India has been filed impugning seniority list dated 02.01.2020, wherein the petitioners have been placed below the private respondents.

2. The petitioners are working as Junior Engineer (Civil) and their services are governed under The Uttar Pradesh Development Authorities Centralized Services Rules, 1985 (hereinafter referred to as ‘Rules of 1985’) framed under Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as ‘Act of 1973’) by an amendment brought in on 27.04.1985, which empowered the State Government to create centralized services for all the development authorities of the State.

3. In exercise of the powers conferred under Sub-Section 5A of the Act of 1973, Rules of 1985 were enacted. These Rules were inforced with effect from 25.06.1985. The petitioners were appointed on 23.11.1984 on temporary basis on the posts of Junior Engineer (Civil) at Kanpur Development Authority by the said development authority.

4. It appears that the State Government had issued orders/directives to all Chairman, Development Authorities and Vice Chairman of the Development Authorities vide Government Orders dated 02.01.1983 and 09.03.1983 whereby it was directed that no appointment in Uttar Pradesh Palika (Centralized) Cadre would be made without prior sanction of the Government. These two government orders have been placed on record with the counter affidavit as Annexure CA-1 and CA-2.

5. From the reading of the aforesaid two government orders, it is clear that the appointment of the petitioners was made without prior permission of the State Government and same should be treated illegal.

6. Further, vide Government Order dated 17.12.1984, placed on record with the counter affidavit as Annexure-CA-5, which was addressed to all the development authorities whereby it was directed and made clear that vide Ordinance dated 22.10.1984, Uttar Pradesh Development Authorities (Centralized) Services had been created and despite clear directives issued by the Government for not making appointments, promotion, regularization and transfer or creation of the posts, some development authorities were still making appointments etc. It was further said that in past the government orders had been issued on 09.03.1983 and 16.04.1984 in this respect and, it was expected from the development authorities that they would strictly adhere to the directives issued in the State Government order.

7. Further, it was brought to the notice of the Government that some development authorities before issuance of the Ordinance on 22.10.1984 and, thereafter also have made appointments etc. Therefore, it was directed by the Hon'ble Governor in exercise of the powers under Section 4 of Act of 1973 that any appointment etc. made after 09.03.1983 without prior sanction of the Government in respect of the posts created vide Ordinance dated 22.10.1984 would be treated to be void ab initio and, in future appointments would be made only in accordance with the provisions of centralized services rules which were being promulgated shortly.

8. After promulgation of Rules of 1985, applications were invited for direct appointment on the posts of Junior Engineer (Civil) and advertisements were issued in April and May, 1986. The petitioners as well as private respondents applied in pursuance of the said advertisements. The petitioners and private respondents were selected by the selection committee duly constituted under the Rules and were recommended for appointment on the posts of Junior Engineer (Civil). The State Government vide office order dated 31.07.1986 had appointed the petitioners and private respondents on the posts of Junior Engineers (Civil) on purely temporary and ad hoc basis.

9. On 02.02.1992 by way of an amendment, Rule 20A was inserted in Rules of 1985 for facilitating regularization of ad-hoc appointments. Rule 20-A of Rules of 1985 provides that any person