Rules framed under the proviso to Article 309 of the Constitution cannot be extended to the employees of the Pay Jal Nigam, unless they adopt it.

LAHARI GURRALA | Symbiosis Law School, Hyderabad | 8th December 2019

DHARMENDRA PRASAD & ORS. Vs SUNIL KUMAR & ORS. | CIVIL APPEAL NO. 9247 OF 2019

Facts of the Case:

• An advertisement was issued by the “Pey Jal Nigam” on the 29th November,2004 for filling up of vacancies of 241 posts of Junior Engineer (Civil). This included 104 posts under General Category, 52 posts under Other Backward Classes, 70 posts under Scheduled Castes and 15 posts under Scheduled Tribes.

• Another 38 posts were advertised for Junior Engineer (Mechanical). Alongside the mentioning of the posts the advertisement contemplated that the reserved posts shall be filled up in accordance with the reservation policy of the Government of Uttaranchal.

• Further, the advertisement mentioned that the horizontal reservation in each category for females, ex-servicemen, handicapped people and dependents of freedom fighters will be made as per the order of the Government of Uttaranchal dated 18th July, 2001.

• Later on , the State State Government permitted the Nigam to make appointments to the posts of Junior Engineer and Assistant Engineer on 3rd May, 2005 (Annexure R3/4) and that the appointment of 34 posts of Assistant Engineer and 107 posts of Junior Engineer was to be made as per the prescribed roster after making calculations based upon the Government order dated 31st August, 2001. Such sanction was in respect of 88 posts of Junior Engineer (civil).

• Pursuant to the above said advertisement, the selection process was completed and a merit list on the basis of marks obtained in the written test and interview was published. The appointment orders were given to the candidates in each category proportionate to the quota reserved for the reserved category candidates. It is pertinent to note that one of the conditions in the letter of appointment was that the seniority will be determined later.

• Subsequently, a tentative seniority list was published on 14th September, 2010 based upon the merit list prepared on the basis of the marks obtained in the written test and interview. The final seniority list was published on 28th November, 2014 on the basis of the merit list prepared while declaring the result but, the said list was in contravention to Regulation 23 of the Regulation framed by the Nigam.

• Objections were filed to such seniority list and the said seniority list became subject matter of challenge before the Uttarakhand Public Services Tribunal but the learned Tribunal dismissed the petition. Subsequently, a review petition was filed which was further dismissed.

• Later on, the matter was challenged before the High Court of Uttarakhand, the High Court held that the order passed by the tribunal and the order passed by the review petition must be set aside. It held that the seniority must be decided on the bases of their date of appointment and ordered to prepare a fresh seniority list.

• As the result of High court’s order the candidates who rank higher in merit has appealed Supreme Court of India.

Issue:

• Whether the seniority employees must be determined with respect to Regulation 23 of the Regulations which is framed by the Nigam or with respect to the merit list( candidates who rank higher) ?

Held:

• The Supreme Court of India has held that the order of the High Court and that of the Tribunal are not sustainable in law as the seniority list has not been prepared with respect to roster circulated which is required to be mandatorily followed in the terms of Regulation 6 as well with the approval of the State Government to fill up 88 posts specifically mentions that the reservation shall be made as per the 100 points roster as prescribed in the Circular dated 31st August, 2001.

“Regulation 6 states that the reservation of candidates belonging to SC, ST, Backward Classes and the candidates of other categories shall be in accordance with the orders of the Government in force at the time of recruitment. In terms of such Regulations, the Government order dated 31st August, 2001 becomes applicable to determine the extent of reservation which includes the method of determining seniority as well. Apart from Regulation 6, indeed the approval of the State Government to fill up 88 posts”.

• It was also held that there was no finding of any merit in the argument raised by the state that the seniority has to be fixed as per Rule 5 of the Uttarakhand Government Servant Seniority Service Rules, 2002. Such Rules were not adopted to be applicable to the Nigam. These Rules are applicable to government servants in respect of whose recruitment and condition of service Rules may be or have been made by the Government under the proviso to Article 309 of the Constitution. Since the employees of the Nigam are not government servants nor are their service conditions governed by Rules framed under the proviso to Article 309 of the Constitution, therefore, such Rules unless adopted by the Nigam cannot be extended to the employees of the Nigam.

• Subsequently, the seniority lists finalised by the High Court of Uttarakhand were set aside and directed to recast seniority of the candidates in the order of merit by assigning their seniority as per the roster points given in the circular dated 31st August, 2001.

• With the said directions, the appeals stands disposed of.