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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, Alok Singh, JJ.
L.P. Badoni and others - Petitioners
Versus
State of Uttarakhand and others - Respondents
WRIT PETITION (S/B) NO. 190 OF 2016
Decided On : 03-10-2017
The issue of seniority between direct recruits and promotees in the Minor Irrigation Department was examined in light of the relevant statutory Rules. The Court held that the seniority of the direct recruits and promotees should be determined in accordance with the cyclic order as provided in Rule 17 of the Minor Irrigation Service Rules, 2006, and that the combined seniority list should be prepared taking into account the prescribed percentage for each category of recruitment.
Fact of the Case:
The petitioners, who were appointed as Assistant Engineers through promotion, challenged the seniority list prepared by the respondents, which gave seniority to the directly recruited Assistant Engineers over them. The petitioners contended that their seniority should be determined from the date of their substantive appointment, which was earlier than the date of appointment of the direct recruits. The respondents, on the other hand, argued that the seniority should be determined in accordance with the cyclic order prescribed in Rule 17 of the Minor Irrigation Service Rules, 2006.
Finding of the Court:
The Court held that the seniority of the direct recruits and promotees should be determined in accordance with the cyclic order as provided in Rule 17 of the Minor Irrigation Service Rules, 2006. The Court found that Rule 17 clearly provides that the combined seniority list shall be prepared by taking the names of candidates from the relevant lists under Rule 5 in such a manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. The Court also held that the combined seniority list should be prepared taking into account the prescribed percentage for each category of recruitment as provided in Rule 5 of the Minor Irrigation Service Rules, 2006.
Issues: 1. Whether the seniority of the direct recruits and promotees should be determined from the date of their substantive appointment or in accordance with the cyclic order prescribed in Rule 17 of the Minor Irrigation Service Rules, 2006? 2. Whether the combined seniority list should be prepared taking into account the prescribed percentage for each category of recruitment?
Ratio Decidendi: The Court held that the seniority of the direct recruits and promotees should be determined in accordance with the cyclic order as provided in Rule 17 of the Minor Irrigation Service Rules, 2006, and that the combined seniority list should be prepared taking into account the prescribed percentage for each category of recruitment. The Court relied on the following provisions of the Minor Irrigation Service Rules, 2006: * Rule 3(f): Defines the term "Member of the Service" * Rule 3(h): Defines the term "Substantive Appointment" * Rule 3(i): Defines the term "Year of recruitment" * Rule 5: Deals with the source of recruitment * Rule 7: Deals with the qualifications * Rule 14: Provides for the determination of the number of vacancies to be filled during the course of the year of recruitment * Rules 15 & 16: Deal with the procedure for direct recruitment and procedure for recruitment by promotion respectively * Rule 17: Deals with the preparation of the combined select list for the post of Assistant Engineer * Rule 19: Deals with the appointment of candidates * Rule 20: Deals with probation * Rule 21: Provides for confirmation of service * Rule 22: Deals with the determination of seniority
Final Decision: The Court dismissed the writ petition filed by the petitioners, upholding the seniority list prepared by the respondents.
K.M. Joseph, J.
The issue, which has been raised in this case, relates to the vexed question relating to inter se seniority between the direct recruits and the promotees. It is a perennial problem, which continues to haunt Courts of law from time to time. The resolution of the said dispute must depend upon the facts of the case and, also, the relevant statutory Rules. The relief’s, which have been sought in the writ petition, are as follows:
“I. Issue a writ, order or direction in the nature of certiorari to quash the impugned office memorandum dated 12.05.2016 (Annexure No. 8 to the Writ Petition) passed by Respondent No. 1.
I(a) Issue a writ, order or direction in the nature of certiorari to quash the impugned judgment and order dated 03-11-2015 passed by the Learned Public Service Commission in Claim Petition No. 12/NB/DB/2015 so far as the findings and observations made in paragraph NO. 15 and 17 are concerned wherein it has been observed that in view of Rule 17 of the Minor Irrigation Service Rules, 2006, the seniority would be determined according to cyclic order.
II. Issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 1 and 2 to redraw the seniority of Assistant Engineers on the basis of their date of substantive appointment strictly in accordance with Rule 8(1) of the Uttarakhand Government Servants Seniority Rules, 2002 read with Rule 22 of the Uttarakhand Service of Engineers Minor Irrigation Department, Rules, 2006.”
2. Writ petitioners are working as Assistant Engineers in various Divisions of the Minor Irrigation Department. They were appointed as Junior Engineers and, later on, promoted as Assistant Engineers. Petitioner nos. 1, 2 and 3 were promoted as Assistant Engineers vide Annexure-1 Office Memorandum dated 14.01.2011. Petitioner No. 4 was promoted as Assistant Engineer vide Office Memorandum dated 15.06.2011 against the vacancy of the selection year 2010-11. This was done vide Annexure-2 dated 15.06.2011. Petitioner no. 5 came to be promoted as Assistant Engineer vide Office Memorandum dated 28.01.2013 (Annexure-3). As far as the private respondents are concerned, they were appointed as Assistant Engineer by way of direct recruitment on the recommendation of the Uttarakhand Public Service Commission. It is the case of the petitioners that though the selection process commenced in the year 2007, the result was declared belatedly. The vacancies against which the private respondents were appointed were determined as of the year 2006. The party respondents were favoured with the appointment orders on 17.06.2011, 29.06.2011, 20.07.2011, 25.08.2011, 28.01.2013and 06.02.2013. Earlier the inter se seniority dispute had engaged the attention of the Public Service Tribunal in Claim Petition No. 12 of 2015. The Tribunal, after discussion of the matter, proceeded to inter alia hold as follows:
“9. From the perusal of the above rule, it is clear that the Uttarakhand Govt. Servants Seniority Rules, 2002 have also been made applicable in the present case. Apart from that, the Minor Irrigation Service Rules, 2006 also provides certain clauses, which are in some places in addition to the Uttarakhand Government Servants Seniority Rules, 2002. The Minor Irrigation Service Rules, 2006 had been notified in the year 2006, whereas seniority rules of 2002 notified in 2002. The non-obstinate clause of the Uttarakhand Govt. Servants Seniority Rules, 2002 only overrides the inconsistence provisions of other seniority service rules of the other department prior to the publication of Uttarakhand Govt. Servants Seniority Rules, 2002. Thus, the provisions of Rule 8 of the said Rule the Uttarakhand Govt. Servants Seniority Rules, 2002 vis-à-vis Rule 22 of the Minor Irrigation Service Rules 2006 would be applicable in the case of the petitioners. In both the Rules, the seniority has to be dete
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