Case: AJAY KUMAR SHUKLA AND OTHERS Vs. ARVIND RAI AND OTHERS


Decision:
1[ds]8. A plain reading of the above provision stipulates that inter se seniority of the persons appointed as a result of ONE SELECTION would be on the basis of the merit list prepared by the Commission or the Committee, as the case may be. The Commission means the Uttar Pradesh Public Service Commission and the Committee means the Committee constituted to make selections for appointment. In the present case, it was the Commission which had made the selections.18. It is an admitted position that there was one selection for the three streams i.e. Agricultural, Mechanical and Civil. It is also an admitted fact that there is one cadre of Junior Engineers in the Minor Irrigation Department and therefore, there has to be one seniority list of Junior Engineers. The written examination conducted by the Commission comprised of two papers, one compulsory for all streams and the second paper of the specific stream of Engineering whether Agricultural, Mechanical or Civil. So, in effect, there was one examination. Thereafter, interviews were conducted. The Commission, in its affidavits dated 07.04.2019 and 13.05.2019 filed before the High Court, had clearly stated that there was one selection for one examination. However, on account of some litigation and stay granted by the High Court the list of the stream of the Civil Engineering was sent much later after about 10 to 11 months. Commission also admitted in its supplementary counter affidavit before the High Court that it had not prepared a combined merit list of all the three streams but had left it for the Appointing Authority to prepare the same.20. The Appointing Authority, in fact, committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists. It is not the case either of the private respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000. Apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under 1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to the selection of the appellants and private-respondents.21. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below: -30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.23. In the case of Dayaram Asanand Gursahani (supra), there was a delay of 9 years. In the case of B.S. Bajwa (supra), there was a delay of more than a decade. In Malcom Lawrence Cecil DSouza(supra), the delay was of 15 years and in R.S. Makashi(supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge beyond the aforesaid period would require satisfactory explanation.28. In the present case, if we accept the submission of the appellants then the delay at best could be a few months or a year however, if we accept the contentions of the private respondents then the delay could be of five years. In the first contingency, no explanation would be required. However, in the second contingency, if the appellants are successful in satisfactorily explaining the delay, then even this hurdle could be overcome. In the facts of the present case what we find from the final seniority list of 05.09.2006 is that it nowhere mentioned that there were three separate lists of separate streams and that they were received on different dates. On the contrary, there was a recital therein and specific averment to the effect that the list had been prepared on the basis of merit. Thus, it cannot be said that the appellants were aware of the three separate select lists dispatched by the Commission on three different dates at the time of publication of final list dated 05.09.2006.29. It would also be worthwhile to mention here that the appellants had no occasion to know about the three separate lists either at the time they were dispatched by the Commission or at any time thereafter as the appointment letters of all selected candidates of all the three streams were issued simultaneously under Office Order dated 08.10.2001. It would also be relevant to mention that the order finalizing the seniority list of 05.09.2006 also nowhere mentioned that three separate lists of three streams were received from the Commission and placed en bloc as received one after the other.30. At the time of notifying the tentative list on 29.12.2009, it was not stated anywhere that there were three separate lists received on three different dates. As such it could not be alleged that the appellants even at that stage did not file objections regarding preparation of common seniority list. It was only when the final seniority list was published on 05.03.2010 and in the order finalizing the list, it was mentioned by the department that there were three separate lists received on three separate dates and in that sequence the combined seniority was prepared. Thus, it is for the first-time that appellants came to know of the error on publication of the final seniority list on 05.03.2010.31. The respondents have not been able to show any material which could clearly indicate that the appellants had knowledge of three separate lists and the preparation of the seniority list on its basis.32. A reading of the above paragraph does not refer to any details either of any stream, the year of selection, the selection being made on the basis of which advertisement or the dates on which separate lists were received. It is a general statement. This submission of the respondents stands completely diluted in view of the facts recorded in paragraph 5 and last sentence as contained in paragraph 25 of the same office order dated 05.09.2006.35. The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March, 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years.36. It is also admitted by the parties that the next promotion of Junior Engineers in the higher grade is to the post of Assistant Engineer. In the cadre of Assistant Engineer, there are no separate streams but only one cadre of Assistant Engineers. It is the seniority list of the cadre of Junior Engineers which would be the feeder cadre for the post of Assistant Engineers. The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and Civil streams, even though the overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of the Engineers of the Mechanical and Civil streams. The appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission. Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit. Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right.37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others (1991) 2 SCC 295  in paragraph 4 of the report which is reproduced below:4… There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.38. A Constitution Bench in case of Ajit Singh vs. State of Punjab (1999) 7 SCC 209,  laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/hers fundamental right. Jagannadha Rao,J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the State shall not deny to any person equality before the law or the equal protection of the laws. Article 16(1) issues a positive command that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense equality of opportunity in matters of employment and appointment to any office under the State. The word employment being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be considered for promotion. Equal opportunity here means the right to be considered for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for promotion, which is his personal right.Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)xxxx xxxx xxxx xxxx xxxx27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being considered for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be considered for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.40. If the seniority list is allowed to be sustained then the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go.41. The other ground taken by the High Court for non-suiting the appellants were that they had not impleaded all the affected Junior Engineers. For the said proposition, the Division Bench of the High Court has placed reliance upon judgment of this Court in the case of Ranjan Kumar and Others vs. State of Bihar and Others (2014) 16 SCC 187 . The above case was in respect of selection and appointment on the ground that the same had been made only on the basis of interview without holding any written test. The High Court had quashed such selection and appointments even of those appointees who were not even parties to the petition. It was in these circumstances that this Court held that the appointments of non-parties could not be quashed. Facts of the said case are clearly distinguishable.42. The Division Bench of the High Court also relied upon another judgment of this Court in Prabodh Verma and others vs. State of Uttar Pradesh and others (1984) 4 SCC 251 . This case again related to challenge to appointments and in the said case there was no impleadment even in the representative capacity. In such circumstances, this Court said that the petition was liable to be dismissed for non-joinder of necessary parties. In fact, this judgment helps the appellants. Paragraph 50 thereof is reproduced below:50 (1): A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties.43. The third case relied upon by the Division Bench for the above proposition namely State of Uttaranchal vs. Madan Mohan Joshi and others (2008) 6 SCC 797  was again a case where none of the affected parties were impleaded not even in the representative capacity. In such circumstances, this Court remanded the matter to the High Court leaving it open to the original petitioners therein to move an appropriate application for impleading some of the affected teachers in their representative capacity.44. The fourth case relied upon by Division Bench on the above proposition is Indu Shekhar Singh and others vs. State of U.P. and others (2006) 8 SCC 129  . In this case also, the affected parties were not impleaded and this Court relied upon the judgment of this Court in Prabodh Verma (supra).46. In the recent case of Mukul Kumar Tyagi and Ors. vs. The State of Uttar Pradesh and Ors.,(2020) 4 SCC 86  Ashok Bhushan, J., laid emphasis that when there is a long list of candidates against whom the case is proceeded, then it becomes unnecessary and irrelevant to implead each and every candidate. If some of the candidates are impleaded then they will be said to be representing the interest of rest of the candidates as well. The relevant portion of paragraph 75 from the judgment is reproduced below:75…… We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity.47. The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that 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 the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal.48. The Division Bench has also dealt with an issue which according to us was totally irrelevant and alien to the adjudication of the present appeals. In paragraph 45 of the judgment of the Division Bench there is a reference to an issue where a party takes calculated chances of participating in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. For the said proposition, the Division Bench made detailed discussions in paragraphs 46, 47, 48 and 49 of the judgment and relied upon a number of case laws. In our considered view, this issue was not at all relevant. The said issue does not arise in the present case. The appellants/original writ petitioners had never challenged the selection process. The challenge was only to preparation of the seniority list. As such, this discussion by the Division Bench is totally irrelevant.49. The Division Bench further in paragraph 51 had in a generalized and vague manner recorded that the authorities relied upon by the learned single Judge were rendered in a different fact situation and were not applicable. The Division Bench did not consider the judgments relied upon by the learned Single Judge but only made this passing remarks. What we find is that the authorities relied upon by the learned Single Judge were relevant and correctly applied.50. Further, the Division Bench in paragraphs 51, 52, 53 proceeded to deal with the delay stating it to be 11 years, the basis for calculation of 11 years was that the seniority list of 2006 was challenged by way of amendment by the appellants in the year 2017 and therefore there was a delay of 11 years. This discussion by Division Bench also cannot be sustained. The first seniority list was prepared in 2006. It was not disclosed as to how the seniority list has been prepared by treating the three separate lists independently on their merits but not as a result of combined merit of the three lists. It was only in 2010 that the appellants came to know of the fallacy and soon thereafter they challenged the seniority list of 2010. Even if, they did not challenge the seniority list of 2006, 2010 seniority list could always be revisited, reviewed and prepared afresh, if the same was quashed. The appellants could not have been at any loss even if they had not challenged the 2006 seniority list.51. The reasoning given in paragraphs 54, 55, 56 regarding issue of single selection is also not sustainable in view of Rules 1991 as also Rules 2009.52. Lastly, paragraph 57 of the judgment of the Division Bench which deals with Rule 5 and 8 of 1991 Rules, we may only reiterate that, whether it was Rule 5 which was applicable or Rule 8 which was applicable, the seniority inter se of direct recruits to one selection has to be one combined list based on the performance and the marks awarded in the examination prepared either by the Commission or the Committee, as the case may be. True, the learned 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 the judgment inasmuch as the basis for preparation of the 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.