IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 268 of 2009 Date of Decision : 09.12.2009 Vijay Pal Sharma ……… Petitioner Versus State of Uttarakhand and others ……… Respondents CORAM:- HON’BLE J.S.KHEHAR, CHIEF JUSTICE HON’BLE B.C.KANDPAL, JUDGE Present: Mr. Sharad Sharma, Senior Advocate with Mr.Davesh Bishnoi Advocate for the petitioner. Mr. Subhash Upadhyay, Advocate for the respondent No.1. J.S. Khehar, C.J. (Oral) Primarily the claim at the hands of the petitioner is for promotion to the post of Associate Town Planner. This claim was sought to be raised by the petitioner on the ground, that a person junior to him has been promoted as Associate Town Planner without considering the claim of the petitioner. Therefore, the primary issue for determination is, whether the petitioner herein Vijay Pal Sharma was senior to respondent No.3 Sushil Kumar Pant in the cadre of Assistant Town Planner so as to claim preference for consideration as against his alleged junior, for promotion to the post of Associate Town Planner. 2. Although in the first instance, the petitioner had approached this Court by filing a writ petition for his aforesaid claim, but he was relegated to avail his remedy before the Public Services Tribunal, Uttarakhand (hereinafter referred to as the Tribunal). Accordingly, the petitioner approached the Tribunal by preferring 2 Claim Petition No. 37 of 2006. The aforesaid claim petition was disposed of by the Tribunal, vide an order dated 31.08.2009. In its determination the Tribunal arrived at the conclusion that the petitioner was not senior to Sushil Kumar Pant (who had been allowed promotion to the post of Associate Town Planner) and as such, the claim for promotion to the post of Associate Town Planner at the hands of the petitioner was also declined by the Tribunal. 3. Through the instant writ petition, the petitioner has assailed the order passed by the Tribunal dated 31.08.2009. Learned counsel for the petitioner during the course of hearing of the instant case has raised as many as four contentions, so as to assert for consideration the superior claim of the petitioner viz. respondent No.3 on the issue of seniority in the cadre of Assistant Town Planner. 4. So as to deal with the issues canvassed at the hands of the learned counsel for the petitioner, it is essential to delineate the factual position based on the service record of the rival parties. In this behalf, it would be pertinent to mention that both the petitioner Vijay Pal Sharma as also respondent No.3 Sushil Kumar Pant participated in a process of selection for appointment on the post of Assistant Town Planner. On the culmination thereof an order dated 20.05.1986 was issued by Chief Town Planner appointing the petitioner as also respondent No.3 as Assistant Town Planners, on ad-hoc basis. The aforesaid order of appointment, authorized the petitioner as also the respondent No.3 to continue to discharge their duties on the posts of Assistant Town Planner till 28.02.1987. In the order dated 20.05.1986, while the name of the petitioner figured at serial No.10, that of respondent No.3 figured at serial No. 2. 5. On the receipt of the aforesaid letter of appointment, the petitioner assumed his charge as Assistant Town Planner by joining his duties on 05.06.1986, whereas respondent No.3 joined as Assistant Town Planner on 04.08.1986. 3 6. The pleadings in the instant petition reveal, that the petitioner as also respondent No.3 continued to render service in the cadre of Assistant Town Planner till 1991, whereupon by an order dated 15.03.1991 both petitioner as also respondent were regularised in the cadre of Assistant Town Planner. In the aforesaid order of regularisation, while the name of petitioner figured at serial No.15 that of respondent No.3 figured at serial No.10. Subsequently, both the petitioner and respondent No.3 were confirmed in the cadre of Assistant Town Planner by an order dated 15.07.2000. The instant order expressly mentioned that the confirmation of both the petitioner as well as the respondent No.3 in the cadre of Assistant Town Planner was w.e.f. 15.03.1993. Herein also the name of petitioner figured at serial No.11, while that of respondent No.3 figured at serial No.7. 7. At the time when the petitioner as also respondent No.3 were confirmed in service, they were both employees of the composite State of Uttar Pradesh. The said State Government issued a provisional seniority list in 1993. While issuing the aforesaid list, objections were invited from those aggrieved by the position assigned to them in the seniority list. In the aforesaid provisional seniority list, the name of respondent No.3 figured at a position higher than that assigned to the petitioner. It is not a matter of dispute that despite the aforesaid position in the provisional seniority list, the petitioner did not file any objection thereto. Subsequently the composite State of Uttar Pradesh issued a final seniority list on 09.05.1995. Herein also the name of the petitioner figured at serial No. 28, whereas that of respondent No.3 figured at serial No. 24. The higher position assigned to respondent No.3 in the subsequent seniority list was not assailed by the petitioner at any stage whatsoever. 8. On the creation of State of Uttaranchal, though the petitioner and respondent No.3 were allocated to it, yet the State Government did not issue its own seniority list but adopted the 4 seniority list issued by the composite State of Uttar Pradesh. In so far as the instant factual position is concerned, there is a slight discrepancy pointed out at the hands of the learned counsel for the petitioner. The discrepancy will be dealt with later, while dealing with one of the contentions advanced on behalf of the petitioner. 9. It is in the aforesaid background that the claim of the petitioner for a position higher than the one assigned to respondent No.3 in the seniority list of the cadre of Assistant Town Planner has to be considered. The first contention advanced at the hands of the learned counsel for the petitioner is, that there was no justification whatsoever to treat respondent No.3 as senior to the petitioner. In fact, it is pointed out that there is no comparison between the petitioner and respondent No.3. In order to substantiate his submission, learned counsel for the petitioner has invited this Court’s attention to the Uttar Pradesh Town and Country Planning Service Rules, 1987 (hereinafter referred to as the Service Rules), and thereupon invited the attention of this Court to Rule 3 (m), which defines the term ‘Year of recruitment’. Rule 3(m) relied upon by the learned counsel for the petitioner is being extracted hereunder:- “3. (m) ‘Year of recruitment’ means the period of twelve months commencing from the first day of July of a calendar year.” In view of the factual position noticed in the foregoing paragraphs based on the term ‘year of recruitment’, it is the vehement contention of the learned counsel for the petitioner, that an year of recruitment under the Rules commences from 1st of July of a particular year. Accordingly, it is submitted that since the petitioner assumed his duties as Associate Town Planner consequent upon the issuance of appointment order dated 20.05.1986, on 05.06.1986, his year of recruitment must be treated as the year preceding the year of recruitment of respondent No.3, in as much as, respondent No.3 5 assumed his duties in furtherance of the same appointment letter dated 20.05.1986 on 04.08.1986. Based on the fact that the year of recruitment of the petitioner is 1985-86 whereas that of respondent No.3 is 1986-87 it is the vehement contention of the learned counsel for the petitioner that the petitioner should be treated as senior to the respondent No.3. We have considered the first submission advanced by the learned counsel for the petitioner. In so far as the issue of seniority is concerned, under the Service Rules relied upon by the learned counsel for the petitioner, seniority is to be determined on the basis of Rule 23 of the Service Rules. Although Rule 23 is to be dealt with by us, while dealing the next submission made at the hands of the learned counsel for the petitioner yet having perused Rule 23, we are satisfied that the term “year of recruitment” has no relevance to the determination of seniority under Rule 23. As such, we are of the view that there is no merit in the first contention advanced by the learned counsel for the petitioner. 10. The second contention advanced by the learned counsel for the petitioner is based on Rule 23 of the Service Rules. Rule 23 of the Service Rules is being extracted hereunder:- “23 (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order. Provided that if the appointment order specified a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order : Provided further that, if more than one order of appointment are issued in respect of any one selection the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of rule 19. 6 (2) the seniority-interse of persons appointed directly on the result of any one selection, shall be the same as determined by the Commission or, as the case may be, by Selection Committee. Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reasons shall be final. (3) The Seniority-interse of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.” In order to canvass the claim of superiority in seniority on behalf of the petitioner, learned counsel for the petitioner has relied upon the proviso under sub-rule (2) of Rule 23 so as to canvass, that the aforesaid proviso has an overriding effect on sub-rule (2) of Rule 23, inasmuch as, if a candidate is recruited by direct recruitment, but does not assume the charge within the time allowed to him, he would lose his seniority vis-à-vis others selected in the same process of selection (who assume their duties in consonance with the order of appointment). 11. Before we deal with the second submission advanced by the learned counsel for the petitioner, it is necessary to understand the implications of Rule 23 of the Service Rules. Sub-rule (1) of Rule 23 mandates, that if two or more persons are selected in a common process of selection, their position in the seniority list would be the same, in which their names are arranged in the order of appointment. Undisputedly, in the order of appointment dated 20.05.1986, while the name of respondent No.3 figured at serial No.2 that of the petitioner figured at serial No.10. Thus viewed, under sub-rule (1) of Rule 23, the petitioner most definitely had to be treated as junior to respondent No.3. Secondly, sub-rule (2) of Rule 23 also mandates that interse seniority of all persons appointed by direct recruitment, emerging out of common process of selection, would be in the order 7 of merit depicted in the select list. Herein also, in so far as is the petitioner and respondent No.3 are concerned there can be no doubt that both of them came to be appointed by direct recruitment as Assistant Town Planners from a common process of selection. However, it is not the case of the petitioner before us, that his name was placed in the select list, at a position higher than that assigned to respondent no.3. Yet again based on the express mandate on sub-rule (2) of Rule 23, the superiority of respondent No.3 over the petitioner on issue of seniority stands clearly established by the fact that in the order of appointment the name of respondent No.3 was placed at serial No.2, whereas, that of the petitioner figured at serial No.10. 12. Dealing pointly with the issue canvassed by the learned counsel for the petitioner based on the proviso under sub-rule (2) of Rule 23 of the Service Rules. The aforesaid proviso mandates that in case a candidate, who is recruited directly, does not without valid reason(s), assume charge of the post, within the period allowed to him, he “may” lose his seniority. Since respondent No.3 had joined service months after he was issued the appointment letter, it is submitted, that he should be presumed to have joined after the stipulated days allowed, and as such, cannot be held to be entitled to seniority on the basis of the order of his appointment. 13. In so far as the instant loss of seniority, canvassed by the learned counsel for the petitioner, during the course of his second submission is concerned, the proviso under sub-rule (2) of Rule 23 of the Service Rules further provides, that on the issue of loss of seniority the decision of appointing authority as to whether such a person who does not assume charge consequent upon the issuance of an order of appointment “shall” be final. It is not the case of the petitioner before us that respondent No.3 having not assumed his duties within the time stipulated in the order of appointment, was relegated to an inferior position by an order of the appointing 8 authority. Thus viewed, we are satisfied that the petitioner cannot claim any relief at our hands on the basis of the proviso under sub- rule (2) of Rule 23 of the Service Rules. In view of the above, we find no merit even so far as the second contention advanced by the learned counsel for the petitioner is concerned. 14. The third contention of the learned counsel for the petitioner is based on clause (3) of the order of appointment dated 20.05.1986. The aforestated letter is available on the record of the writ petition as Annexure-1. A perusal of clause (3) reveals, that those appointed as Assistant Town Planners (including respondent No.3) were to assume their duties within 15 days, and in case they did not do so, the order of appointment would be deemed to have been cancelled. So as to demonstrate, that respondent No.3 took well over 15 days to assume charge of the post Associate Town Planner, it is submitted, that although the aforesaid order was issued on 20.05.1986 (and the petitioner had assumed charge in furtherance thereof on 05.06.1986) respondent No.3 assumed charge almost two months after the petitioner had assumed his charge (on 04.08.1986), and thus, it is apparent that respondent No.3 did not assume the charge of the post of Assistant Town Planner within the time stipulated. Having failed to do so, it is the submission of the learned counsel for the petitioner that respondent No.3 cannot claim any benefit on the basis of appointment order dated 20.05.1986. 15. We have considered the third submission advanced by the learned counsel for the petitioner. Clause (3) relied upon by the learned counsel for the petitioner, all the selected persons appointed by the order dated 20.05.1986 to assume charge within 15 days of the receipt of the appointment letter. There is no pleading whatsoever in the present writ petition, wherein the petitioner has asserted that respondent No.3 did not assume charge within the prescribed 15 days, after the receipt of the appointment letter dated 20.05.1986. Thus 9 viewed, we find no justification in the submission advanced by the learned counsel for the petitioner. There is, however, yet another reason for not accepting the instant contention. The continuation of respondent No.3 in service in the cadre of Associate Town Planner is, admittedly, on the basis of the order dated 20.05.1986. Respondent No.3 was subsequently regularised in the cadre of Associate Town Planner by an order dated 15.03.1991, again based on original appointment order dated 20.05.1986. He (respondent No.3) came to be confirmed also by an order dated 15.07.2000, based on his continuation in service again on the order of appointment dated 20.05.1986. It is, therefore, apparent that the order of appointment of respondent No.3 dated 20.05.1986 never came to be cancelled. In the eventuality, if respondent No.3 had failed to join his duties within 15 days from the receipt of order of appointment in terms of the mandate thereof the order would have automatically been cancelled. Since the order of appointment of respondent No.3 never came to be cancelled, and he not only assumed his charge, but came to be regularized and confirmed also under the said order, we are satisfied that respondent No.3 must have assumed his charge within 15 days of the receipt of the order of appointment dated 20.05.1986. In view of the aforesaid conclusions, we are satisfied that there is hardly any merit even in the third contention advanced by the learned counsel for the petitioner. 16. The last contention advanced by the learned counsel for the petitioner is twin pronged, and is based on a tentative seniority list issued by the State of Uttaranchal, copy whereof has been placed on record of this case as Annexure-10. It is the submission of the learned counsel for the petitioner based on the aforesaid tentative seniority list, that the issue of seniority had never come to be finalised after the petitioner and respondent No.3 came to be allocated to the successor State of Uttaranchal. In the said tentative seniority list, the name of petitioner figures at serial No.1, whereas that of respondent 10 No.3 figures at serial No.2. It is, therefore, the contention of the learned counsel for the petitioner, that till the finalisation of the seniority list, the petitioner should be treated as senior to respondent No.3. The second submission based on the aforesaid tentative seniority list is, that the date of appointment as Assistant Town Planner depicted against the name of the petitioner, is 20.05.1986, whereas respondent No.3 is stated to have been appointed to the cadre of Assistant Town Planner on 04.08.1986. It is sought to be suggested by the learned counsel for the petitioner that appointment in to service of the petitioner and respondent No.3 being from different dates, the petitioner who came to be appointed earlier must be treated senior to respondent No.3 who came to be appointed later. 17. We have considered both the submissions advanced by the learned counsel for the petitioner, which were jointly canvassed by him as a part of his fourth contention. In so far as the higher position of the petitioner in the tentative seniority list is concerned, the same can hardly be the basis of any claim at the hands of the petitioner. While adjudicating upon the second contention advanced by him (herein above), we have dealt with Rule 23 of the Statutory Rules. The aforesaid Rule regulates the issue of seniority amongst members of the cadre. During the course of determination of the second submission, based on sub-rule (1) of Rule 23, as also, sub-rule (2) of Rule 23, we have arrived at the conclusion, that in the facts and circumstances of the present case, respondent No.3 has to be declared senior to the petitioner. In the aforesaid view of the matter there is hardly any justification to refer to the “tentative” seniority list. In so far as the submission of the learned counsel for the petitioner in connection with the earlier appointment of the petitioner, as against respondent No.3 is concerned, we are of the view that continuous date of appointment does not regulate the seniority under Rule 23 of the Service Rules. Therefore, merely because the petitioner claims to be 11 appointed earlier than the respondent No.3, would not entitle him to higher position in the seniority list viz. respondent No.3. It is necessary to record, that the instant submission has been considered in the manner canvassed, but the correct factual/legal position has been considered while dealing with the second contention advanced on behalf of the petitioner. 18. No other submission was advanced by the learned counsel for the petitioner. 19. For the reasons recorded herein above, we find no merit in the instant writ petition and the same is, accordingly, dismissed. ( B.C. Kandpal, J.) ( J.S. Khehar, C.J.) 09.12.2009 P.Singh