State of Uttaranchal v. Madan Mohan Joshi , (SC) BS144398
SUPREME COURT OF INDIA

Before:- S.B. Sinha and Lokeshwar Singh Panta, JJ.

Civil Appeal No. 3540 of 2008 (Arising out of SLP (C) No. 12124 of 2006). D/d. 13.5.2008.

State of Uttaranchal & Anr. - Appellants

Versus

Madan Mohan Joshi & Ors. - Respondents

For the Appellants :- Gopal Subramanium, ASG with Ms. Rachana Srivastava and Ashish Jain, Advocates.

For the Respondents :- Vinay Garg, Ms. Deepam Garg, Abhinav Ramkrishna, Avatar Singh Rawat and Raj Singh Rana, Advocates.

A. Constitution of India, Articles 14 and 16 - Seniority - The persons who would lose their seniority in the event writ petition was to be allowed, were not impleaded as parties - Respective rights of seniority required determination in their presence - Matter remitted for consideration afresh.

[Paras 17 to 20]

B. Constitution of India, Articles 14 and 16 - Seniority inter se - May not be a fundamental right, but is a civil right - Have civil consequences - Requires determination in their presence.

[Para 17]

Cases Referred :-

State of UP v. Dinkar Sinha, 2007(3) SCT 315 : 2007(7) SCALE 8.

Prabodh Verma v. State of Uttar Pradesh AIR 1985 Supreme Court 167.

A. Janardhana v. Union of India (1983)3 SCC 601.

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Inter se seniority amongst the teachers of Kumaon University is in question in this appeal which arises out of a judgment and order dated 21.3.2006 passed by a Division Bench of the High Court of Uttaranchal at Nainital in Writ Petition No. 71 of 2004).

Before adverting to the aforementioned question, we may notice the factual matrix involved in the matter.

3. First Respondent was appointed on an ad hoc basis as a Lecturer in Government P.G. College, Almora by the State of Utter Pradesh through Vice-Chancellor, Kumaon University on or about 22.9.1975. The said College was declared as the Campus College of the University. All Lecturers including the first respondent were continued and treated on deputation with the University; the cut off date wherefor was fixed 16.8.1977. The State of Utter Pradesh framed U.P. Regularisation Rules, 1979, the relevant provisions whereof reads as under :

4. Pursuant to and in furtherance of the said Rules, services of 355 ad hoc Lecturers were regularized. However, the cases of nine Lecturers including the first respondent, who had been working on deputation, were left out. It is contended that one Savita (Mohan) Dhondiyal who had also been appointed as an ad hoc Lecturer on 17.4.1975 and, thus, being junior to the first respondent was regularized.

5. Representations were made by the respondents and others. The Directorate of Higher Education, Uttar Pradesh asked the Vice-Chancellor of the University to forward the list of the said Lecturers pursuant whereto, services of nine Lecturers including the respondent were regularised by an order dated 11.7.1980, stating :

6. Aggrieved by the said order, they made a representation.

7. By an order dated 9.6.1988, the services of the respondent were appointed with effect from 1.7.1983, it was stated :

Sr. No. Name and designation of Officer who has BEEN regularised Date of regularized Details of vacancies
1-20 XX XX XX
21. Shri Madan Mohan Joshi Lecturer in Botany Science 1.7.1983

8. The State of Uttarakhand then known as State of Uttaranchal has been curved out from the State of Uttar Pradesh. In the seniority list, the first respondent was placed at serial number 137 whereas Mrs. Savita (Mohan) Dhondyal was placed at serial No. 102. Objections were filed to the said seniority list wherefor recommendations were made by the Directorate of Higher Education in the following terms :

9. A writ petition was filed by the first respondent before the High Court of Uttaranchal at Nainital which by reason of the impugned judgment has been allowed.

10. Mr. Gopal Subramanium, learned Additional Solicitor General appearing on behalf of the State, would submit that the High Court committed a serious error insofar as it failed to take into consideration that the State Uttaranchal, having framed the Uttaranchal Higher Education (Group A) Service Rules, was bound by the provisions thereof and in that view of the matter, the High Court committed a serious error insofar as it failed to take into consideration the effect of the statutory rules governing the field in their proper perspectives.

11. Mr. Garg, learned counsel appearing on behalf of the respondent, on the other hand, would contend that as the instant case is governed by the Rules which were applicable prior to coming into force of 2003 Rules, the High Court has not committed any illegality or the impugned judgment is unassailable.

12. It was contended that in the writ petition it was not necessary for the first respondent even to implead the said Savita (Mohan) Dhondyal and others as party respondents, as no relief had been claimed against them. Reliance has been placed on A. Janardhana v. Union of India & Ors. [(1983)3 SCC 601].

13. Services of the first respondent as also several others including Savita (Mohan) Dhondyal, as noticed herein before were regularised in terms of the provisions of the U.P. Regularisation Rules.

Indisputably, services of those whose names appear above the first respondent, services of those were regularised w.e.f. 22.5.1980 whereas that of the first respondent was regularised from 11.7.1980. The order dated 11.7.1980 categorically stated :

The said direction has not been set aside by the High Court. Validity thereof may be in question in the writ petition.

14. The question as to which Rule would govern the inter se seniority amongst the parties has not been determined. Rule was framed by the State of Uttaranchal in 2003 in terms of the proviso appended to Article 309 of the Constitution of India.

Rule 3(k) defines 'substantive appointment' to mean an appointment, not being an ad hoc appointment, on a post in the cadre of the Service made after selection in accordance with the rules and if there are no rules in accordance with the procedure prescribed for the time being by executive instruction issued by the Government.

15. Rule 20 of the said Rules lays down the mode of determining seniority in the following terms :

The said Rule also contains a power of relaxation being Rule 25 which is to the following effect :

16. The question as to whether the said Rules will have retrospective effect or in any event will govern the cases of the parties, thus, was required to be determined by the High Court.

17. The High Court, in its impugned judgment, proceeded on the basis as to what would constitute a substantive appointment. The decisions of this Court, whereupon strong reliance has been placed by the High Court in arriving at its conclusion may not be of much significance but what is significant is that in the writ petition even Savita (Mohan) Dhondyal and others who lose their seniority in the event writ petition was to be allowed, were not impleaded as parties. They, in our opinion, should have been impleaded as parties in the writ application. Savita (Mohan) Dhondyal and others, if the writ petition is allowed, would suffer civil consequences. Inter se seniority may not be a fundamental right, but is a civil right. [See State of UP & Anr. v. Dinkar Sinha, 2007(3) SCT 315 : [2007(7) SCALE 8]. The respective rights of seniority of the parties, thus, required determination in their presence.

18. A Three Judge Bench of Court in Prabodh Verma & Ors. v. State of Uttar Pradesh & Ors. [AIR 1985 Supreme Court 167], stated the law as under :

19. Reliance placed on A. Janardhana (supra) by Mr. Garg, in our opinion, is misplaced. Therein, no relief was claimed against any individual. The only relief which was claimed therein was against the Union of India. The question which was raised therein was a question of interpretation. It was in the aforementioned situation, this Court held that all the employees were not required to be impleaded as a party. In that case, the case of direct recruits has not gone unrepresented. It was stated :

20. For the reasons aforementioned, we are of the opinion that the interest of justice would be sub-served if the impugned judgment is set aside and the matter is remitted to the High Court for consideration of the matter afresh. In the writ petition, the first respondent may file an appropriate application for impleading Savita (Mohan) Dhondyal and others as parties and/or some teachers in their representative capacity. The High Court is requested to allow the said application for impleadment and determine the matter in accordance with law as expeditiously as possible, preferably within the period of 8 weeks of the communication of this Order.

21. The appeal is disposed of accordingly.

Order accordingly.