Holding

The respondents could not be absorbed under Section 5‑A(2) and therefore are not entitled to the benefit of Rule 7; their past service in U.P. Jal Nigam cannot be counted for seniority.

Summary

Four former employees of U.P. Jal Nigam were deputed to the Ghaziabad Development Authority. The State offered them permanent absorption into the Development Authority Centralised Service on the condition that their past service in Jal Nigam would not be counted for seniority and that they would rank below officers appointed directly. The respondents accepted, resigned from Jal Nigam, and later challenged the seniority order, claiming a violation of Articles 14 and 16. The Allahabad High Court allowed the writ, directing that their past service be counted. On appeal, the Supreme Court held that because U.P. Jal Nigam is not a development authority, the respondents could not be absorbed under Section 5‑A(2) of the Uttar Pradesh Urban Planning and Development Act, 1973; consequently Rule 7 of the Development Authority Centralised Services Rules, 1985, which governs seniority, was inapplicable. Seniority is a civil right, not a fundamental right, and the State was within its power to impose the conditions which the respondents voluntarily accepted. The High Court’s order was set aside and the appeal was allowed.

Issues considered

The respondents' entitlement to have their past service in U.P. Jal Nigam counted for seniority after absorption into the Development Authority Centralised Service.
Whether Section 5‑A(2) of the Uttar Pradesh Urban Planning and Development Act, 1973 applies to employees deputed from U.P. Jal Nigam, an autonomous body, to a development authority.
Whether the conditions imposed by the State for absorption violate Articles 14 and 16 of the Constitution.
Whether Rule 7 of the Uttar Pradesh Development Authority Centralised Services Rules, 1985, is applicable to the respondents.

Legislation cited

Uttar Pradesh Urban Planning and Development Act, 1973s. 5-A

Subjects

senioritypast serviceabsorptiondeputationUttar Pradesh Urban Planning and Development ActSection 5-ARule 7Articles 14 and 16civil servicestatutory rulesdoctrine of election

Judgment

INDU SHEKHAR SINGH AND ORS. A
v.
STATE OF U.P. AND ORS.

APRIL 28, 2006
B
[S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Uttar Pradesh Urban Planning and Development Act, 1973:

Section 5-A (2)-Respondents, employees of U.P. Jal Nigam, on C
deputation to the Development Authorities-Options vis-a-vis their absorption
in the authorized centralized service stipulating condition that their past
services rendered in U.P. Jal Nigam would not be reckoned for the purpose
of determination of seniority and they would be placed below the officers
who had been appointed on regular basis in centralized service after their
absorption-ca/led for-Respondents resigned from their services from UP. D
Jal Nigam-Whether benefit of past service available towards reckoning
seniority-Held, on facts, not entitled to benefit of past services rendered in
their parent department.

Respondent No. 2 Respondent No. 3 Respondent No. 4 and the intervener
herein (now Respondent No. 6) employees ofU.P. Jal Nigam were deputed to E
Ghaziabad Development Authority on different dates. U.P. Jal Nigam,
admittedly, is to and has never been a development authority. The employees
on deputation to the development authorities from U.P. Jal Nigam, therefore,
could not have been absorbed in the centralized services in terms of Sub-
section (2) of Section 5-A of the Uttar Pradesh Urban Planning and p
Development Act, 1973. Options were, however, called for from the officers
ofU.P. Jal Nigam on deputation on various dates by the State ofU.P. By various
letters, they were asked to communicate their acceptance stating as to whether
they would like to be absorbed in the authorized centra.lized service subject
to the conditions specified therein, e.g., their past services rendered in U.P.
Jal Nigam would not be reckoned for the purpose of determination of seniority G
and they would be placed below the officers who had been appointed on regular
basis in centralized service after their absorption. The Respondents,
admittedly, resigned from their services from U.P. Jal Nigam. No option,
however, was given to Respondent Nos. 3 and 6. They, however, presumably
497 H
498 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A opted on their own for their absorption in the authorized centralised services
of the development authorities. The State issued letters of absorption, so far
as Respondent Nc.s.2 and 3 are concerned on 18.3.1994 and so far as
Respondent Nos. 4 and 6 (the intervener) are concerned on 6.4.1987.
Appellants were appointed in various development authorities in the year 1984
or before. In view of Rule 7 of the Uttar Pradesh Development Authorities
B Rules, 1985, the Appellants were placed above Respondent Nos. 2, 3, 4 and 6
in the seniority list. Questioning the said orders, Respondent Nos. 2 to 4
herein filed a writ petition before the Allah a bad High Court praying inter alia,
for a writ/direction in the nature of mandamus commanding the respondents
to give benefit of past service to the petitioners rendered by them in the parent
C department. The High court allowed the writ petition holding that (i) refusal
on the part of the State to grant benefit of past services in U.P. Jal Nigam in
favour of the Respondents is violative of Articles 14 and 16 of the Constitution
of India; (ii) by reason of acceptance of offer to give up their past services, the
optees did not and could not have waived their fundamental right and, thus,
acceptance of the conditions for their absorption was not material; (iii) in view
D of the fact that similar benefits were granted by the court in favour of S/Shri
Brij Mohan Goel and Sushil Chandra Dwivedi, the Respondents could not have
been discriminated against. Hence this appeal.

On behalf of the Appellants it was contended that (i) the plea of
E discrimination raised by the Respondents was misconceived as the High Court
overlooked the fact that no finality has been attained in the cases of Brij Mohan
Goel and Sushi/ Chandra Dwivedi and the matters are still sub-judice; (ii) so
far as the case of Sushi! Chandra Dwivedi is concerned, the order impugned
therein was quashed on the ground that the principle of natural justice had
not been complied with and thus, the same must be held to be pending decision
F before the appropriate department; (iii) in the case of Shri D. C. Srivastava,
the writ petition having wrongly been dismissed as infructuous, this Court,
by Judgment dated 24.3.2003 in Civil Appeal Nos. 2403-04 of2003, restored
the writ petition and remitted the matter back to the High Court; (iv) Rule 7
was amended by the State by an order dated 9.12.2002 whereby and whereunder
G the post of Assistant Engineer in Jal Nigam, an autonomous body under the
U.P. Water Sewarage Act was held not to be equivalent to the post of Assistant
Engineer in the Development Authority Centralized Service; (v) S/Shri Brij
Mohan Goel and Sushil Chandra Dwivedi being already in the services of the
Development Authority, were not required to opt for Centralised Service in
terms of Section 5-A of the Act and Rule 7 of the Rules, whereas Jal Nigam
H being not a Development Authority and its services having not merged in the
INDU SHEKHAR SINGH v. STATE OF U.P. 499
Centralised Service, Rule 7 could not have been applied in the fact of the A
present case, as in fact Rule 28 would apply hereto. (vi) An erroneous order
cannot be made the basis for sustaining a plea of discrimination. It was also
contended that (i) the Respondents did not have any fundamental right to be
deputed to any other autonomous organization or being absorbed permanently
and thus, the question as regard reckoning of their past services for the B
purpose of seniority was a matter which was within the exclusive domain of
the State in respect whereof the High Court should not have exercised its
power of judicial review (iii) reckoning of past services was directed to be
made by this Court only i the cases (a) where Army Officers were recruited
during national emergencies and such past services were directed to be
counted in terms of the Rules; (b) where recruitment had been made from C
multi sources including that of deputation; (iii) the said principles would not,
thus, apply to the present case having regard to the provisions of Section S-
A of the Act and in that view of the matter, Articles 14 and 16 of the
Constitution cannot be said to have any application whatsoever; (iv) doctrine
of Election would apply in the case of Respondents as they had a choice to
refuse absorption and ask for their reversion to the parent department, but D
having not done so, they cannot be allowed to turn round and contend that
they had been discriminated against; (v) the Respondents having accepted
conditional appointment as far back in the year 1987 ad 1994, could not have
filed a writ petition in the year 2000 which, thus, suffering from inordinate
delay and latches, the writ petition should have been dismissed. (vi) Respondent E
Nos. 2 to 4, having not been absorbed in terms of Section 5-A of the Act, the
provisions of Rule 7 of the Rules, 1985 were not attracted.

On behalf of the State it was submitted that in view of the notification
dated 9.12.2002, the writ petition fil~d by the Respondents has become
infructuous under Section 5-A(2) of the Act. Hence, the benefit of Rule 7(1) F
of the 1985 Rules is not available to the said respondents.

On behalf of Respondent Nos. 2 to 4 it was contended that (i) no ground
of delay and latches having been raised by the State and the Appellants who
were not parties to the writ petition and hence, they cannot be allowed to raise
the said contention before this Court; (ii) it is not a case where Respondent G
Nos. 2 to 4 had been appointed through side door and having regard to the
fact that the conditions imposed for their absorption by the State were unfair
and unreasonable, the same would be violative of Article 14 of the Constitution
-~
of India and in tha~ view of the matter, the impugned judgment of the High
Court is sustainabl,e in law; (iii) there being not much difference between H
500 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A deputation and transfer, and the Respondent, being deputationists, must be
regarded to have been appointed on transfer from Jal Nigam and hence, could
not be denied an equivalent position in the transferee department, wherefor
their past services could not have been ignored; (iv) length of service being
the ordinary law for reckoning seniority of the employees, the State of U.P.
B could not deny the benefits thereof to the Respondents; (v) Even assuming
that Respondent Nos. 2 to 4 gave concurrence to that effect that they would
not be conferred the benefits of the services rendered in Jal Nigam, for
fixation of seniority they are at least entitled to the seniority from the date of
their deputation till the date of their absorption as the decision on their offer
could not have been taken after an unreasonable period, which is itself violative
C of Article 14 of the Constitution of India; (vi) The State or for that matter the
Authority, during the pendency of the cases of the Respondents, could not
have made ad-hoc appointments and given seniority to those ad-hoc employees.
(vii) the High Court has rightly followed the cases and the decisions passed
in Sushi! Chandra Dwivedi and Brij Mohan Goel as seniority had been given
to them, altho!lgh they were appointed on work charge basis and they have
D not only been promoted to the post Executive Engineer, they have also been
promoted to the post of Superintending Engineer.

Allowing the appeals, the Court

HELD: I.I. Respondent Nos. 2 to 4 were not and could not have been
E absorbed under Section 5-A(2) of the Uttar Pradesh Urban Planning and
Development Act, 1973 and thus evidently Rule 7(1) of the Uttar Pradesh
Development Authority Centralised Services Rules, 1985 not attracted.
[509-C]

1.2. Respondent Nos. 2 to 4, therefore, are not entitled to the benefits of
F
Rule 7 of U.P. Development Authorities Centralised Services Rules, 1986. In
terms of the rules, there is no provision for appointment by way of transfer.
There is also no provision for appointment on permanent absorption of the
deputed employees. The only provision which in the fact situation obtaining
in the present case would apply and that too in the event the State intended to
G absorb the employees of Jal Nigam, would be Section 7(1) of the Act and Sub-
Rule (2) of Rule 37 of Rules, 1985. [513-G, H; 514-Al

1.3. The terms and conditions of recruitment/appointed to the post,
seniority and other terms and conditions of service are governed by statutory
rules. The statute provides that only those who were in the employment of the
H different Development Authorities, shall be borne to the cadre of the Central
INDUSHEKHARSINGHv. STATEOFU.P. 501

Services. The U.P. Jal Nigam was not a Development Authority. It was A
constituted under a different statute. It was an autonomous body. The
employees working with Jal Nigam might have been might have been deputed
to the services of the Development Authorities, but only by reason thereof
they did not derive any right to be absorbed in the services. Ordinarily, an
employee has no legal right to be deputed to another organization. He has B
· also no right to be permanently absorbed excepting in certain situation.
[512-H; 513-A, BJ
UO.I. thr. Govt. of Pondicherry and Anr. v. V. Ramkrishnan and Ors.,
12005) 8 sec 394, relied upon.
Ram Janam Singh v. State of U.P. and Anr., [1994) 2 SCC 622 and D.R. C
Yadav and Anr. v. R.K. Singh and Anr., [2003] 7 SCC llO 7 SCC llO, referred
to.
Prafulla Kumar Das and Ors. v. State ofOrissa and Ors., [2003) l l SCC
614 and Roshan Lal Tandon v. Union of India, AIR (1967) SC 1889,
distinguished.
D
2.1. Seniority, as is well settled, is not a fundamental right. It is merely
a civil right. [514-A]
Bimlesh Tanwar v. State of Haryana, [2003] 5 SCC 604 and Prafulla
Kumar Das & Ors. v. State of Orissa and Ors., [2003] I I SCC 614, referred
to.
E
3.1. The State is within its right to impose conditions. The Respondents
exercised their right of election. They could have accepted the said offer or
rejected the same. While making the said offer, the State categorically stated
that for the purpose of fixation of seniority, they would not be obtaining the
benefits of services rendered in U.P. Jal Nigam and would be placed below in
the cadre till the date of absorption. Moreover, the period they were with the F
Authority by way of deputation, can not be considered towards seniority simply
for the reason that till they were absorbed, they continued to be in the
employment of the Jal Nigam. Furthermore, the said condition imposed is
backed by another condition that the deputed employee who is seeking for
absorption shall be placed below the officers appointed in the cadre till the G
date of absorption. Respondent Nos. 2 to 4 accepted the said offer without any
demur. There is no fundamental right in regard to the counting of the services
rendered in an autonomous body. The past services can be taken into
consideration only when the Rules permit the same or where a special
situation exists, which would entitle the employee to obtain such benefit of
past service. [514-D-F-H; 515-A) H
•
502 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A Government of Andhra Pradesh and Ors v. MA. Kareem and Ors., (1991 I
Supp. 2 SCC 183; U.P. Awas Evam Vikas Parishad and Ors. v. Rajendra
Bahadur Srivastava and Anr., ( 19951 Supp. 4 SCC 76; Union of India and
Anr. v. Onkar Chand and Ors., (19981 9 SCC 298 and Anand Chandra Dash
v. State of Orissa and Ors., (199812 SCC 560, relied upon.

B R.S. Makashi and Ors. v. I.M Menon and Ors., (198211sec379 and
Wing Commander J. Kumar v. Union of India and Ors., (19821 2 SCC 116,
referred to.

K. Madhavan and Anr. v. Union of India and Ors., (198714 SCC 566;
K. Anjaiah and Ors. v. K. Chandraiah and Ors., (199813 SCC 218 and Sub-
C Inspector Roop/al and Anr. v. Lt. Governor through Chief Secretary, Delhi
and Ors., (20001 I SCC 644, distinguished.

3.2. The respondents exercised their right of option. Once they obtained
entry on the basis of election, they cannot be allowed to tum round and contend
D that the conditions are illegal. It was open to the Respondents herein not to
agree to in spite of the said conditions as they had already been working with
a statutory authority, they, however, expressly consented to do so. They must
have exercised their option, having regard to benefits to which they were
entitled to in the new post. Once such option is exercised, the consequences
attached thereto would ensue. (525-E, Fl
E
HEC Voluntary Retd Emps. Welfare Soc. and Anr. v. Heavy Engineering
Coporation Ltd. and Ors., JT (2006) 3 SC 102, referred to.

R.N. Gosain v. Yashpal Dhir, (19921 4 SCC 683; Ramankutty Guptan v.
Avara, (1994( 2 SCC 642 and Bank of India and Ors. v. O.P. Swarnakar and
F Ors. (20031 2 sec 721, relied upon.

3.3. Absorption of the deputationists, on the other hand, would depend
upon an arrangement, which may be made by the State being not a part of the
statutory Rule. They would, thus, be borne in the cadre in terms of the
directions of the State in exercise of its residuary power. (516-AI
G
4.1. Since the appellants were not joined as parties in the writ petition
filed by the Respondents, in their absence, the High Court could not have
determined the question of inter se seniority. (525-GI

Prabodh Verma and Ors. v. State of U.P. and Ors., AIR (1985) SC 167,
H
INDU SHEKHAR SINGH v. STATE OF U.P. [SINHA, J.] 503
relied upon. A
CIVIL ORIGINAL JURISDICTION : Civil Appeal No. 6960 of2005.

From the Judgment/Order dated 4.4.2003 of the High Court of Judicature
at Allahabad in C.M.W.P. No. 22646 of2000.
WITH B
Civil Appeal No. 6961 of2005.

Rakesh Dwivedi, Vishwajit Singh, Vijay Kumar, Saad Shervan, Abhishek
Chaudhary, Gaurav Bhatia, Adarsh Upadhyaya, Piyush Vats, Ajit, Bharti and
Vimla Sinha for the Appellants. c
M.L. Verma, A.K. Srivastava, Jaideep Gupta, Ashok Kumar Singh, Punam
Kumari, Naresh Kumar Gaur, Satya Mitra, K.K. Mohan, Dr. Indra Pratap Singh,
Garvesh Kabra, Anuvrat Sharma, Sanjay Kr. Singh, Reena Singh and T. Mahipal
for the Respondents.
D
The Judgment of the Court was delivered by

S.B. SINHA, J : These appeals arising out of a judgment and order of
the Allahabad High Court dated 4.4.2003 were taken up for hearing together
and are being disposed of by this common judgment.
E
The Respondent No. 2- Mani Kant Gupta, Respondent No. 3-Virendra
Kumar Tyagi and Respondent No. 4-Sukhpal Singh and the intervener herein
(now Respondent No. 6-Vijay Kumar) were appointed in U.P. Jal Nigam on
5.2.1979, 12.12.1978, 16.11.1978 and 15.11.1977 respectively. Several town
planning authorities including Ghaziabad Development Authority were created F
by Uttar Pradesh Urban Planning and Development Act, 1973 ('the Act', for
short) with a view to provide for development of certain areas of State ofUttar
Pradesh according to the plans and for other matters incidental thereto.
Section 4 of the Act empowers the State Government to issue a notification
constituting a development authority for any development area. In exercise
of the said power, the State ofU.P. constituted various development authorities, G
including the Ghaziabad Development Authority. By reason ofU.P. Act No.
21 of 1985, the State of U.P. inserted Section 5-A in the said Act to create
centralized services of all the development authorities, sub-sections 1 and 2
·whereof read as under:

"5-A (1) Notwithstanding anything to the contrary contained in H
504 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A Section 5 or in any other law for the time being in force, the State
Government may at any time, by notification, create one or more
'Development Authorities Centralized Services' for such posts, other
than the posts mentioned in sub-section (4) of Section 59, as the State
Government may deem fit, common to all the development Authorities,
and may prescribe the manner and conditions of recruitment to, and
B the terms and conditions of service of persons appointed to such
service.

(2) Upon creation of a Development Authorities Centralised Service,
a person serving on the posts included in such service immediately
before such creation, not being a person governed by the U.P. Palika
c (Centralised) Services Rules, 1966, or serving on deputation, shall,
unless he opts otherwise, be absorbed in such service, -

(a) finally, if he was already confirmed in his post, and

(b) provisionally, if he was holding temporary or officiating
D appointment."

The said provision came into force with retrospective effect from 22.10.84.

Uttar Pradesh Development Authority Centralised Services Rules were
notified by the Government of Uttar Pradesh on 25th June, 1985 (the '1985
E Rules', for short), some of the relevant provisions whereof would be noticed
by us hereinafter.

The Respondent Nos. 2, 3, 4 and 6 (the intervener) were deputed to
Ghaziabad Development Authority on diverse dates, i.e., 26.6.1986, 6.5.1989,
16.!0.1985 and 1.4.1984 respectively.
F
U.P. Jal Nigam, admittedly, is not and has never been a development
authority. The employees on deputation to the development authorities from
U.P. Jal Nigam, therefore, could not have been absorbed in the centralized
services in terms of Sub-section (2) of Section 5-A of the Act. Options were,
G however, called for from the officers of U.P. Jal Nigam on deputation on
various dates by the State of U.P.

By letter 27.8.1987 and 28.11.1991 they were asked to communicate their
acceptance stating as to whether they would like to be absorbed in the
authorized centralized service subject to the conditions specified therein, e.g.,
H their past services rendered in U.P. Jal Nigam would not be reckoned for the
INDUSHEKHARSINGHv. STATEOFU.P. [SINHA,J.) 505
purpose of detennination of seniority and they would be placed below the A
officers who had been appointed on regular basis in centralized service after
their absorption. A copy of the Office order dated 3rd February, I997 by way
of example may be noticed:

"GOVERNMENT OF UTTAR PRADESH HOUSING SECTION-5
B
No. 338/9 Housing-5-97-2628/96
Lucknow dated 03 February, l 997
OFFICE ORDER

For fixation of seniority of Shri Sushi! Chandra Dwivedi, Assistant
Engineer in Authority Centralised Services, the Government Otder No. C
416912/9Aa-5-91/94 dated 6.11.95 with respect to inclusion of service
rendered by him in State Planning Institute was not found legal in
view of Rule 7(1) of Authority Centralised Services Rules. Consequently,
after consideration, the said order dated 6.1.95 is hereby cancelled.

2. As a result, in Authority Centralised Services on the post of D
Assistant Engineer, in the Seniority list declared vide Government
Order No. 159619 Aa-5-95-1235/95 dated 12.4.96, the seniority of Shri
Dwivedi is ordered by the Governor to be fixed below Shri Anil Kumar
Goel shown at serial no.64 and in order of seniority at serial no.6
above Shri Ramesh Kumar at serial 64A in order of seniority. E
Illegible
Chief Secretary"
The Respondents herein, admittedly, resigned from their services from
U.P. Jal Nigam. The Respondent No. 2 accepted the said offer of the State in
tenns of his letter dated 27.8. 1987 stating: p
"With regard to the conditions stated in your Office memo referred
to above on the aforementioned subject, I submit as follows :
(a) The applicant fully accepts the condition Nos.1,2,3,4 mentioned
in your Office Memo, whereas with respect to condition no.5, I G
submit that this condition .has already been complied with vide
letter No. 66/87 dated 2.5.87 of Vice Chairman, Ghaziabad
Development Authority.
(b) With respect to condition No. 2, I submit that the applicant has
been appointed on regular basis in U.P. Jal Nigam on the post of H
Assistant Engineer (Civil) in accordance with the rules and
506 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A regulations in the year 1978 after qualifying in written examination
and interview etc. Subsequently w.e.f. 1.4.84 my services on the
post of Assistant Engineer were made permanent. Photocopy of
the Office memo is enclosed for your perusal. Therefore, presently
the applicant is appointed on permanent basis on the post of
B Assistant Engineer in U.P. Jal Nigam. Thereafter, according to my
knowledge, on the basis of Government Orders which are at
present in existence my absorption in Authority Centralised
Services should be treated as regular selection from the date of
absorption.

C Therefore, you are again requested that a decision in this regard
should be taken on a sympathetic consideration. Thereafter, whatever
decision is taken shall be acceptable to the applicant.

In accordance with the instructions contained in the last paragraph
of your above referred office memo, I am enclosing my resignation
D addressed to the Managing Director, U.P. Jal Nigam, Lucknow. Kindly
forward the same to the Managing Director."

No option, however, was given to Respondent Nos.3 and 6 (the
intervener). They, however, presumably opted on their own for their absorption
in the authorized centralised services of the development authorities. It is not
E in dispute that the State issued letters of absorption, so far as Respondent
Nos.2 and 3 are concerned on 18.3 .1994 and so far as Respondent Nos. 4 and
6 (the intervener) are concerned on 6.4.1987. The Appellants herein were
appointed in various development authorities the details whereof are as
under:
F S.No. Name Date of appointment

I. lndu Shekhar Singh 142.83
2. Shivraj Singh 14.5.82
3. S.N. Tripathi 24.7.79
G
4. S.S. Verma 27.6.84
5. P.C. Pandey 12.10.84
6. Rakesh Kr. Shukla 15.5.82
7. Ajay Kr. Singh 24.4.82
H
INDU SHEKHAR SINGH v. STA TE OF U.P. [SINHA, J.] 507

In view of Rule 7 of the Uttar Pradesh Development Authorities Rules, A
1985, the Appellants were placed above the Respondent Nos.2, 3, 4 and 6 in
the seniority list. Questioning the said orders, Respondent Nos. 2 to 4 herein
filed a writ petition before the Allahabad High Court praying, inter alia, for
the following relief:

"i. To issue a writ order or direction in the nature of mandamus B
commanding the respondents to give benefit of past service to the
petitioners rendered by them in the parent department and to treat the
petitioners for promotion or promote them when the juniors were
considered and promoted else they shall suffer irreparable loss and
injury."
c
By reason of the impugned order dated 4.4.2003, the said writ petition
has been allowed. The High Court, relying on or on the basis of the decision
of this Court in Sub-Inspector Roop/al & Anr. v. Lt. Governor through Chief
Secretary, Delhi & Ors., [2000) I SCC 644, opined:

( l) That refusal on the part of the State to grant benefit of past service
D
in U.P. Jal Nigam in favour of the Respondents is violative of Articles 14 and
16 of the Constitution of India;

(2) By reason of acceptance of offer to give up their past services, the
optees did not and could not have waived their fundamental right and, thus, E
acceptance of the conditions for their absorption was not material;

(3) In view of the fact that similar benefits were granted by the court
in favour of S/Shri Brij Mohan Goel and Sushil Chandra Dwivedi, the
Respondents could not have been discriminated against.
F
Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the
Appellants in support of these appeals would submit:

l.(i) That the plea of discrimination raised by the Respondents was
misconceived as the High Court overlooked the fact that no finality has been
attained in the cases of Brij Mohan Goel and Sushi/ Chandra Dwivedi and G
the matters are still sub-judice;

(ii) So far as the case of Sushi/ Chandra Dwivedi is concerned, the
order impugned therein was quashed on the ground that the principles of
natural justice had not been complied with and thus, the same must be held
to be pending decision before the appropriate department; H
508 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A (iii) In the case of Shri D.C. Srivastava, the writ petition having wrongly
been dismissed as infructuous, this Court, by Judgment dated 24.3.2003 in
Civil Appeal Nos.2403-04 of 2003, restored the writ petition and remitted the
matter back to the High Court;

(iv) Rule 7 was amended by the State by an order dated 9.12.2002
B whereby and whereunder the post of Assistant Engineer in Jal Nigam, an
autonomous body under the U.P. Water Sewarage Act, was held not to be
equivalent to the post of Assistant Engineer in the Development Authority
Centralized Service;

(v) S/Shri Brij Mohan Goel and Sushi! Chandra Dwivedi being already
C in the services of the Development Authority, were not required to opt for
Centralised Service in terms of Section 5-A of the Act and Rule 7 of the Rules,
whereas Jal Nigam being not a Development Authority and its services
having not merged in the Centralised Service, Rule 7 could not have been
applied in the fact of the present case, as in fact Rule 28 would apply hereto.
D
(vi) An erroneous order cannot be made the basis for sustaining a plea
of discrimination.

11.(i) The Respondents did not have any fundamental right to be deputed
to any other autonomous organization or being absorbed permanently and
E thus, the question as regard reckoning of their past services for th~ purpose
of seniority was a matter which was within the exclusive domain of the State
in respect whereof the High Court should not have exercised its power of
judicial review.

(iii) Reckoning of past services was directed to be made by this Court
F only in the cases:
(a) where Army Officers were recruited during national emergencies
and where such past services were directed to be counted in
terms of the Rules;
(b) where recruitment had been made from multi sources including
G that of deputation;

(iii) The said principles would not, thus, apply to the present case
having regard to the provisions of Section 5-A of the Act and in that view
of the matter, Articles 14 and 16 of the Constitution cannot be said to have
H any application whatsoever;
INDU SHEKHAR SINGH v. STATE OF U.P. [SINHA, J.] 509
(iv) Doctrine of Election would apply in the case of Respondents as A
they had a choice to refuse absorption and ask for their reversion to the
parent department, but having not done so, they cannot now be allowed to
turn round and contend that they had been discriminated against;

(v) The Respondents having accepted conditional appointment as far
back in the year 1987 and 1994, could not have filed a writ petition in the year B
2000 which, thus, suffering from inordinate delay and latches, the writ petition
should have been dismissed.

(vi) The Respondent Nos. 2 to 4, having not been absorbed in terms
of Section 5-A of the Act, the provisions of Rule 7 of the Rules, 1985 were C
not attracted.

The learned counsel appearing on behalf of the State submitted that in
view of the notification dated 9.12.2002, the writ petition filed by the
Respondents has become infructuous· and in this connection our attention
was drawn to paragraph 5 of its counter affidavit, which is to the following D
effect:

"5. That, it may further be stated that under the provisions of the U.P.
Development Authorities Centralised Services Rules 1985 and the
I Ith Amendment dated 9.12.2002 therein whereby Rule 7(1) of the said
Rules stood substituted, the past services of only those officers/ E
employees shall be counted towards seniority, who are finally absorbed
in the service under section 5-A(2) of the Act, on the criterion of
continuous length of service including the services rendered in a
Development Atuhority, Nagar Mahapalika, Nagar Palika, Improvement
Trust or in Government Department on similar posts. Respondent nos.
2 to 4 have not been absorbed under Section 5-A(2) of the Act. F
Hence, the benefit of Rule 7(1) of the 1985 Rules is not available to
the said respondents."

Mr. M.L. Verma, learned Senior Counsel appearing on behalf of the
Respondent Nos. 2 to 4, on the other hand, submitted:
G
(i) That no ground of delay and latches having been raised by the State
and the Appellants who were not parties to the writ petition and hence, they
cannot be allowed to raise the said contention before this Court;

(ii) It is not a case where the Respondent Nos. 2 to 4 had been H
510 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A appointed through side door and having regard to the fact that the conditions
imposed for their absorption by the State were unfair and unreasonable, the
same would be violative of Article 14 of the Constitution oflndia and in that
view of the matter, the impugned judgment of the High Court is sustainable
in law;

B (iii) There being not much difference between deputation and transfer,
and the Respondents, being deputationists, must be regarded to have been
appointed on transfer from Jal Nigam and hence, could not be denied an
equivalent position in the transferee department, wherefor their past services
could not have been ignored;
c (iv) Length of service being the ordinary law for reckoning seniority of
the employees, the State of U.P. could not deny the benefits thereof to the
Respondents;

(v) Even assuming that the Respondent Nos. 2 to 4 gave concurrence
D to that effect that they would not be conferred the benefits of the services
rendered in Jal Nigam, for fixation of seniority they are at least entitled to the
seniority from the date of their deputation till the date of their absorption as
the decision on their offer could not have been taken after an unreasonable
period, which is itself violative of Article 14 of the Constitution of India;

E (vi) The State or for that matter the Authority, during the pendency of
the cases of the Respondents, could not have made ad-hoc appointments and
give seniority to those ad-hoc employees. '

(vii) The High Court has rightly followed the cases and the decisions
passed in Sushi/ Chandra Dwivedi and Brij Mohan Goel as seniority had
F been given to them, although they were appointed on work charge basis and
they have not only been promoted to the post of Executive Engineer, they
have also been promoted to the post of Superintending Engineer.

Sections 2(vi) and 2(vii) of the Act are :

G "2(vi) 'Member of the service' means a person absorbed against or
appointed to a post in the cadre of the service under these rules;

(vii) 'Service' means the Uttar Pradesh Development Authorities
Centralised Services created under the Act."

H Rule 7(1) of the U.P. Development Authorities Centralised Services
INDU SHEKHARSINGH v. STATEOFU.P. [SINHA,J.) 511

Rules, 1986 which has been amended by Amendment Rules, 2002 reads thus: A
Column-I Column-I
Existing Rule Rule as hereby substituted

7( I) Notwithstanding anything in 7(1) Notwithstanding anything in rule
rule 28 the seniority of such officers 28 the seniority of such officers and
and other employees who are finally other employees who are finally B
absorbed in the service under Sub- absorbed in the service under Sub-
section (2) of section 5-A of the Act section (2) of section 5-A of the Act
shall be determined on the criterion shall be determined on the criterion
of continuous length of service of continuous length of service
including the services rendered in a including the services rendered in a c
Development Authority, Nagar Development Authority, Nagar
Mahapalika, Nagar Palika or Mahapalika, Nagar Palika or
Improvement Trust on similar posts. Improvement Trust or in Government
1
Department on similar posts.

Rule 28 of the Rules, 1985 reads: D
"28. Seniority. - (I) Except as hereinafter provided, the seniority of
persons in any category of post, shall be determined from the date of
order of appointment and if two or more persons are appointed together,
by the order in which their names are arranged in the appointment
order: E
Provided that if more than one order or appointment are i~sued
in respect of any one selection, the seniority shall be mentioned
in the combined order of appointment issued under Sub-rule (3)
of Rule 25.
F
(2) The seniority inter se of persons appointed directly on the result
of any one selection, shall be the same as determined by the
Commission or the Selectio_n Committee, as the case may be :
Provided that a candidate required directly may lose his seniority
if he fails to join without valid reasons when vacancy is offered G
to him. The decision of the appointing authority as to the validity
of reasons shall be final.
(3) The seniority inter se of persons appointed by promotion shall be
the same as it was in the cadre from which they were promoted.
H
512 SUPREME COURT REPORTS (2006) SUPP. I S.C.R.

A (4) Notwithstanding anything in Sub-rule (I) the inter se seniority of
persons appointed by direct recruitment and by promotion shall be
determined from the date of joining the service in the case of direct
recruits and from the date of continuous officiation in the case of
promotees and where the date of continuous officiation of promotee
and the date of joining of the direct recruit is the same, the person
B appointed by promotion shall be treated as senior:

Provided that where appointments in any years of
recruitment are made both by promotion and direct recruitment
and the respective quota of the source is prescribed, the inter se
seniority shall be determined by arranging the names in a
c combined list in accordance with Rule 17 in such manner that the
prescribed percentage is maintained."

Rule 37 of the Rules states:

"37. Regulation of other matters.- (I) If any dispute of difficulty
D arises regarding interpretation of any of the provistons of these rules,
the same shall be referred to the government whose decision shall be
final.

(2) In regard to the matters not covered by these rules or by
special orders, the members of service shall be governed by the rules,
E regulations and orders applicable generally to U.P. Government
servants serving in connection with the affairs of the State.

(3) Matters not covered by Sub-rules (I) and (2) above shall be
governed by such orders as the Government may deem proper to
issue."
F
Part III of the Rules, 1985 deals with Suitability or Provisionally Absorbed
Persons, Part VII deals with Appointment, Probation, Confirmation and
Seniority. Rule 25 provides for appointment by the Authority in terms of the
selection process, which has been specified in Part V of the said Rules. Part-
G IV deals with recruitment.

The terms and conditions of recruitment/appointment to the post,
seniority and other terms and conditions of service are governed by statutory
rules. The statute provides that only those, who were in the employment of
the different Development Authorities, shall be borne to the cadre of the
H Central Services. The U.P. Jal Nigam was not a Development Authority. It was
INDU SHEKHAR SINGH v. STA TE OF U.P. [SINHA, J.] 513
constituted under a different statute. It was an autonomous body. The A
employees working with Jal Nigam might have been deputed to the services
of the Development Authorities, but only by reason thereof they did not
derive any right to be absorbed in the services. Ordinarily, an employee has
no legal right to be deputed to another organization. He has also no right to
be permanently absorbed excepting in certain situation as was held by this B
Court in U.0.1. thr. Govt. of Pondicherry & Anr. v. V. Ramkrishnan & Ors.,
[2005J 8 sec 394.

The Respondent Nos. 2 to 4 were deputed to the Ghaziabad Development
Authority on their own. They were presumed to be aware that they were not
borne in the cadre of Centralised Services. The Rules do not provide for C
appointment by way of transfer. Appointment by way of absorption of a
deputed employee would amount to fresh appointment which may be subject
to the offer given by the Authority. The Development Authority is a statutory
authority. So is the Jal Nigam. The Schedules appended to the Rules provide
for posts to be filled up by promotion or by direct recruitment or by both.
Schedule IV provides for the posts which were outside the purview of the D
Public Service Commission and are required to be filled up by promotion only,
whereas Schedule V specifies those posts outside the purview of the Public
Service Commission, but were to be filled up through direct recruitment only.
It is not disputed that the State of U.P. has since issued a notification on
9.12.2002 whereby and whereunder Rule 7(1) of the Rules, 1985 stood E
substituted, in terms whereof the past services of only those officers and
employees were to be counted who would finally be absorbed in the services
in terms of Section 5-A(2) of the Act on the criteria of continuous length of
service, including the service rendered in Development Authority, Nagar
Mahapalika, Nagar Palika or Improvement Trust on similar posts. The
Respondent Nos. 2 to 4 were not and could not have been absorbed under F
Section 5-A(2) of the Act and thus evidently Rule 7(1) is not attracted. The
only Rule, which provides for seniority, is Rule 28. Rules 7 and 28, as noticed
hereinbefore, occur in different Chapters providing for different situations.

The Respondent Nos.2 to 4, therefore were not entitled to the benefits
of Rule 7. In terms of the rules, there is no provision for appointment by way G
of transfer. There is also no provision for appointment on permanent absorption
of the deputed employees. The only provision which in the fact situation
obtaining in the present case would apply and that too in the event the State
intended to absorb the employees of Jal Nigam, would be Section 7(1) of the
H
514 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A Act and Sub-Rule (2) of Rule 3 7 of Rules, 1985.

Seniority, as is well settled, is not a fundamental right. It is merely a civil
right. [See Bimlesh Tanwar v. State of Haryana, [2003) 5 SCC 604, paragraph
49 and also Prafu/la Kumar Das & Ors. v. State of Orissa & Ors., [2003] 11
sec 614.J
B
The High Court evidently proceeded on the premise that seniority is a
fundamental right and thereby, in our opinion, committed a manifest error.

The question which arises is as to whether the terms and conditions
imposed by the State in the matter of absorption of Respondent Nos. 2 to 4
C in the permanent service of Ghaziabad Development Authority is ultra vires
Article 14 of the Constitution of India.

The State was making an offer to the Respondents not in terms of any ..
specific power under Rules, but in exercise of its residuary power (assuming
D that the same was available). The State, therefore, was within its right to
impose conditions. The Respondents exercised their right of election. They
could have accepted the said offer or rejected the same. While making the
said offer, the State categorically stated that for the purpose of fixation of
seniority, they would not be obtaining the benefits of services rendered in
U.P. Jal Nigam and would be pla~ed below in the cadre till the date of
E absorption. The submission of Mr. Verma that for the period they were with
the Authority by way of deputation, should have been considered towards
seniority cannot be accepted simply for the reason that till they were absorbed,
they continued to be in the employment of the Jal Nigam. Furthermore, the
said condition imposed is backed by another condition that the deputed
employee who is seeking for absorption shall be placed below the officers
F appointed in the cadre till the date of absorption. The Respondent Nos.2 to
4 accepted the said offer without any demur on 3.9.87, 28.11.91 and 6.4.87
respectively.

They, therefore, exercised their right of option. Once they obtained
G entry on the basis of election, they cannot be allowed to tum round and
contend that the conditions are illegal. [See R.N. Gosain v. Yashpal Dhir,
[1992) 4 SCC 683, Ramankutty Guptan v. Avara, [1994] 2 SCC 642 and Bank
of India & Ors. v. O.P. Swarnakar & Ors., [2003] 2 SCC 721.] Further more,
there is no fundamental right in regard to the counting of the services
rendered in an autonomous body. The past services can be taken into
H consideration only when the Rules permit the same or where a special situation
INDU SHEKHARSINGH v. STATE OF U.P. [SINHA,J.] 515

exists, which would entitle the employee to obtain such benefit of past A
service.

We may now look into some decisions of this Court.

In RamJanam Singh v. State of U.P. & Anr., (1994] 2 SCC 622, this Court
held: B
" ....... It is now almost settled that seniority of an officer in service is
determined with reference to the date of his entry in the service which
will be consistent with the requirement of Articles 14 and 16 of the
Constitution. Of course, if the circumstances so require a group of
persons, can be treated a class separate from the rest for any C
preferential or beneficial treatment while fixing their seniority. But,
whether such group of persons belong to a special class for any
special treatment in matters of seniority has to be decided on objective
consideration and on taking into account relevant factors which can
stand the test of Articles 14 and 16 of the Constitution. Normally, D
such classification should be by statutory rule or rules framed under
Article 309 of the Constitution. The far-reaching implication of such
rules need not be impressed because they purport to affect the seniority
of persons who are already in service. For promotional posts, generally
the rule regarding merit and ability or seniority-cum-merit is followed
in most of the services. As such the seniority of an employee in the E
later case is material and relevant to further his career which can be
affected by factors, which can be held to be reasonable and rational."

The Constitution Bench decision of this Court in Prafulla Kumar Das
& Ors. (supra), whereupon Mr. Verma placed reliance, does not lay down any
universal rule that length of actual service is the determining factor in the F
matter of promotion and consequential seniority. In Roshan Lal Tandon v.
Union of India, AIR (1967) SC 1889, this Court was concerned with inter se
seniority of the employees drawn from two different sources in different
situations.

Such is not the position here. The Appellants herein are borne in the G
cadre of the Centralized Services by reason of provision of a statute. The
statute provides for constitution of the Centralized Services. The State
Government has framed Rules, which having validly been made would be
deemed to be a part of the statute.
H
516 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A Absorption of the deputationists, on the other hand, would depend
upon an arrangement, which may be made by the State being not a part of
the statutory Rule. They would, thus, be borne in the cadre in terms of the
directions of the State in exercise of its residuary power.

In Ram Janam Singh (supra), this Court laid a distinction between those
B who were in the services of Army during emergency and who had joined
Army after the emergency. It was held that those who have served the
country during emergency formed a class by themselves and if such persons
have been treated as a separate class for obtaining benefit in the matter of
seniority, no grievance could be raised on the ground that such classification
C would be upheld on the touchstone of Articles 14 and 16 of the Constitution
of India. Those employees who joined Army after emergency cannot claim
extension of such benefits as a matter of right.

In R.S. Makashi & Ors. v. J.M. Menon & Ors., (1982] l SCC 379, this
Court was considering a case where the staff of a new department had been
D drawn from four different sources.
Thus, in a case where employees were drawn from different sources,
although as part of single scheme, which was considered to be a special
situation, was formulated in that behalf, this Court opined:

E "When personnel drawn from different sources are being absorbed
and integrated in a new department, it is primarily for the government
or the executive authority concerned to decide as a matter of policy
how the equation of posts should be effected. The courts will not
interfere with su.ch a decision unless it is shown to be arbitrary,
unreasonable or unfair, and if no manifest unfairness or
F unreasonableness is made out, the court will not sit in appeal and
examine the propriety or wisdom of the principle of equation of posts
adopted by the Government. In the instant case, we have already
indicated our opinion that in equating the post of Supply Inspector
in the CFD with that of Clerk with two years' regular service in other
G government departments, no arbitrary or unreasonable treatment was
involved."

Despite the fact that the Court held that a rule whereby full benefits
having been given and two years' period had been reduced is not ultra vires
it was stated:
H
INDU SHEKHARSINGHv. STATEOFU.P. [SINHA,J.) 517
"The reasons stated by the learned Single Judge of the High A
Court for declaring the aforesaid rule to be arbitrary and violative of
Article 16 of the Constitution do not appeal to us as correct or sound.
Almost the entire reasoning of the learned Single Judge is based on
an assumption that there is an invariable "normal rule" that seniority
should be determined only on the basis of the respective dates of B
appointment to the post and that any departure from the said rule will
be prima facie unreasonable and illegal. The said assumption is devoid
of any legal sanction. We are unable to recognize the existence of any
such rigid or inflexible rule. It is open to the rule-making authority to
take a note of the relevant circumstances obtaining in relation to each
department and determine with objectivity and fairness what rules C
should govern the inter se seniority and ranking of the personnel
working in the concerned departments and the courts will only insist
that the rules so formulated should be reasonable, just and equitable.
Judged by the said test of reasonableness and fairness, the action
taken by the Government in equating the clerical personnel which had
rendered two years' regular service in other departments with the D
temporary Supply fospectors of the CFO and in directing as per
impugned Rule 4(a) that their inter se seniority shall be determined
with reference to the length of service calculated on the basis of the
said equation cannot be said to be in any way discriminatory or
illegal. We are unable to accept as correct the view expressed by the E
learned single Judge of the High Court that "while fixing the seniority
in the higher post, it is not open to take into consideration any service
rendered in the lower post and that by itself spells out discrimination."
Firstly, it is not correct to regard the post of a regular Clerk in the
other departments as lower in grade in relation to that of a Supply
Inspector in the CFO. Further, in S.G. Jaisinghani v. Union of India, F
this Court has pointed out that in the case of recruitment to a service
from two different sources and the adjustment of seniority between
them a preferential treatment of one source in relation to the other can
legitimately be sustained on the basis of a valid classification, if the
difference between the two sources has a reasonable relation to the G
nature of the posts to which the recruitment is made. In that case, this
Court upheld the provision contained in the seniority rules of the
Income Tax Service, whereby a weightage was given to the promotees
by providing that three years of outstanding work in Class II will be
treated as equivalent to two years of probation in Class I (Grade II)
H
518 SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A Service."

In Wing Commander J. Kumar v. Union of India & Ors .. [ 1982] 2 SCC
116, this Court negatived the contention that any employee had acquired
vested right to have his seniority reckoned with reference to the date of his
permanent secondment and to all officers joining the organisation on
B subsequent dates ranked only below him. The question, which fell therein for
consideration was as to whether the principle enunciated in Rule 16 can be
said to be unreasonable or arbitrary. The Court took into consideration the
factual aspect of the matter and held that it will not be reasonable, just or fair
to determine the seniority of the permanently seconded service personnel
C merely on the basis of the date of their secondment to the Organization.

In that case also Officers from three services holding different ranks
were inducted into the R & D Organisation. Unreasonable consequence that
flowed from the acceptance of the arguments of the Appellant therein were
considered opining:
D " ....... When due regard is had to all the aspects and circumstances,
narrated above, it will be seen that the principle adopted under the
impugned rule of reckoning seniority with reference to a date of
attainment of the rank of substantive Major/equivalent strikes a
reasonable mean as it ensures to all the service officei's in the R &
E D the fixation of seniority in the integrated cadre giving full credit to
the length of service put in by them in their respective parent services."

In K Madhavan & Anr. v. Union of India & Ors., [1987] 4 SCC 566,
whereupon Mr. Verma placed strong reliance, this Court was considering a
case where deputation was made to CBI. The said decision was rendered in
F a situation wherein the original Rule 5 of 1963 Rules providing for 85% of the
recruitment by way of transfer or deputation was altered to 75%. In that case,
the earlier services rendered by the Appellants therein were directed to be
considered having regard to the statutory rules governing the field. Therein
no question of a person joining the services after resigning from his old post
G arose. It is only in that situation, the Court opined that there was not much
difference between deputation and transfer.

A difference between transfer and deputation would be immaterial where
an appointment by transfer is permissible, particularly in an organization like
CBI where personnel are drawn from different sources by way of deputation.
H It is one thing to say that a deputationist may be regarded as having been
INDUSHEKHARSINGH v. STATE OF U.P. [SINHA,J.] 519
appointed on transfer when the deputation is from one department of the A
Government to another department, but it would be another thing to say that
employees are recruited by different Statutory Authorities in terms of different
statutory rules. In a given case, the source of recruitment, the qualification,
etc., may be different in different organizations. The Statutory Authorities, it
is trite, are not and cannot be treated to be the departments of the Government. B
Their employees are governed by the rules applicable to them. Their services
are not protected under Article 311 of the Constitution.

The State can compel an employee to go on deputation from its parent
department to another Public Sector Undertaking unless a statutory rule exists
in this behalf. In absence of such a rule, no employer can force an employee C
to join the services of another employer. Thus, K. Madhavan (supra), in our
opinion, has no application in the instant case.

K. Anjaiah & Ors. v. K. Chandraiah & Ors., [1998) 3 SCC 218 was again
a case where this Court was concerned with multi source recruitment. In that
case construction of Regulation 9 came under consideration, which is to the D
following effect:

"9. (I) The persons drawn from other departments will carry on their
service and they will be treated as on other duty for a tenure period
to be specified by the Commission or until they are permanently
absorbed in the Commission whichever is earlier. E
(2) The services of those staff members working in the Commission
on deputation basis and who opted for their absorption in the
Commission, shall be appointed regularly as the staff in the
Commission, in the cadre to which they belong, as per the orders of
Government approving their appointments batch by batch and to F
determine the seniority accordingly. For this purpose the Commission
may review the promotions already affected."

Therein, thus, existed a provision for appointment by way of absorption
of the deputationist. The said Regulation was declared unconstitutional by
the Tribunal. This Court, however, having regard to the fact situation obtaining G
therein, thought it fit to uphold the Regulations stating:

" ..... that the phraseology used in Regulation 9(2) is no doubt a little
cumbersome but it conveys the meaning that the total length of
service of these deputationists should be taken into account for H
520 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A determining the inter se seniority in the new service under the
Commission and the past service is not being wiped off. We find
considerable force in this argument and reading down the provision
of Regulation 9(2) we hold that while determining the inter se seniority
of the deputationists in the new cadre under the Commission after
they are finally absorbed, their past services rendered in the
B Government have to be taken into account. In other words the total
length of service of each of the employees would be the determinative
factor for reckoning their seniority in the new services under the
Commission."

C Such a finding was, thus, arrived at by way of reading down the Rules
so as to uphold the constitutionality of the said provision and not by laying
any law in that behalf upon interpreting Rule 9(2).

Having noticed the afore-mentioned decisions of this Court, we may
now notice Sub-Inspector Roop/al & Anr. (supra), which is the sheet anchor
0 of the judgment rendered by the High Court. In that case, this Court was
concerned with interpretation of Rule 5(h) of the Delhi Police (Appointment
and Recruitment) Rules, 1980 providing that if the Commissioner is of the
opinion that it is necessary or expedient in the interest of work so to do, he
may make appointment(s) to all non-gazetted categories of both executive and
ministerial cadres of the Delhi Police. on deputation basis and by drawing
E suitable persons from any other State, Union Territory, Central police
organization or any other force. The Appellants therein were deputed on
transfer from BSF to th~ Delhi Police pursuant to the aforementioned provisions.
Rule 5(h) of the said rules empowered the Authority to appoint the employees
of other departments drawn by way of deputation depending upon the need
F of the Delhi Police. There was no seniority rule. Seniority in that case was
sought to be determined by way of an executive order, which in tum was
issued on the basis of a Memorandum dated 29.5.1986 issued by the
Government of India. The Memorandum in question was neither made public
nor the existence thereof was made known to any person involved in the
controversy. The said Memorandum was not made ipso facto applicable to
G the employees. In the aforementioned factual backdrop referring to R.S.
Makashi & Ors. (supra) and Wing Commander J. Kumar (supra), this Court
observed:

".....Therefore, it is reasonable to expect that a deputationist, when his
service is sought to be absorbed in the transferred department would
H
INDU SHEKHAR SINGH v. STATE OF U.P. [SINHA, J.] 521
certainly have expected that his seniority in the parent department A
would be counted. In such a situation, it was really the duty of the
respondents, if at all the conditions stipulated in the impugned
memorandum were applicable to such person, to have made the
conditions in the memorandum known to the deputationist before
absorbing his services, in all fairness, so that such a deputationist
would have had the option of accepting the permanent absorption in B
the Delhi Police or not."

In that case a Coordinate Bench of the Tribunal had opined that those
personnel who were drawn from other departments were entitled to get their
past services counted for the purpose of seniority. The said decision attained
finality. In the case of the Appellant herein, the benefit of the said judgment C
was not extended and the question was sought to be reopened stating that
the post of Sub-Inspector in BSF was not equal to the post of Sub-Inspector
in the Delhi Police. The relevant part of the Memorandum issued on 29.5.1986,
which was relied upon, reads thus:

"Even in the type of cases mentioned above, that is, where an D
officer initially comes on deputation and is subsequently absorbed,
the normal principles that the seniority should be counted from the
date of such absorption, should mainly apply. Where, however, the
officer has already been holding on the date of absorption in the same
or equivalent grade on regular basis in his parent department, it would E
be equitable and appropriate that such regular service in the grade
should also be taken into account in determining his seniority subject
only to the condition that at the most it would be only from the date
of deputation to the grade in which absorption is being made. It has
also to be ensured that the fixation of seniority of a transferee in
accordance with the above principle will not effect any regular F
promotions made prior to the date of absorption. Accordingly it has
been decided to add the following sub-para (iv) to para 7 of general
principles communicated vide OM dated 22-12-1959:
'(iv) In the case of a person. who is initially taken on deputation
and absorbed later (i.e. where the relevant recruitment rules provide G
for "transfer on deputation/transfer"), his seniority in the grade
in which he is absorbed will normally be counted from the date
of absorption. If he has so ever been holding already (on the date
of absorption) the same or equivalent grade on regular basis in
his parent department, such regular service in the grade shall also H
522 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A be taken into account in fixing his seniority, subject to the
condition that he will be given seniority from -
-the date he has been holding the post on deputation, or
-the date from which he has been appointed on a regular basis
to the same or equivalent grade in his parent department,
B whichever is later.' "

The interpretation of clause (iv) and in particular, the words "whichever
is later" came up for consideration in the said decision and on interpretation
of the Rule it was held that the earlier decision in R.S. Makashi & Ors. and
Wing Commander J. Kumar would be applicable. It was, however, of some
C interest to note it was held that such a right of the Appellants-petitioners
therein could not have been taken away in the garb of an Office Memorandum.
In the aforementioned fact situation, the law was stated in the following terms:

"'It is clear from the ratio laid down in the above case that any rule,
regulation or executive instruction which has the effect of taking away
D
the service rendered by a deputationist in an equivalent cadre in the
parent department while counting his seniority in the deputed post
would be violative of Articles 14 and 16 of the Constitution. Hence,
liable to be struck down. Since the impugned memorandum in its
entirety does not take away the above right of the deputationists and
E by striking down the offending part of the memorandum, as has been
prayed in the writ petition, the rights of the appellants could be
preserved, we agree with the prayer of the appellant-petitioners and
the offending words in the memorandum "whichever is later" are held
to be violative of Articles 14 and 16 of the Constitution, hence, those
words are quashed from the text of the impugned memorandum.
F Consequently, the right of the appellant-petitioners to count their
service from the date of their regular appointment in the post of Sub-
Inspector in BSF, while computing their seniority in the cadre ofSub-
lnspector (Executive) in the Delhi Police is restored."

For the said reasons only the executive instruction was held to be ultra
G
vires Articles 14 and 16 of the Constitution of India. It was further held that
by reason of the Memorandum impugned therein the right of the deputationists
could not have been taken away and in that view of the matter, the offending
part of the Memorandum was struck down, as prayed in the writ petition. The
rights of the Appellants were held to have been preserved and the words
H "whichever is later" were held to be ultra vires Articles 14 and 16 of the
INDU SHEKHAR SINGH v. STA TEOF U.P. [SINHA, J.] 523
Constitution of India. A
The decisions referred to hereinbefore, therefore, lay down a law that
past services would only be directed to be counted towards seniority in two
situations: (I) when there exists a rule directing consideration of seniority;
and (2) where recruitments are made from various sources, it would be
reasonable to frame a rule considering the past services of the employees B
concerned.

The said decisions, in our considered view, have no application in this
case, having regard to the provisions of Section 5-A of the Act, in terms
whereof no provision exists for recruitment of deputationists. Recruitment of C
deputationists, in fact, is excluded therefrom.

In the instant case while exercising, as to its power under Rule 37(3),
there was no embargo for the State Government to lay down conditions for
permanent absorption of employees working in one Public Sector Undertaking
to another. Laying down of such conditions and acceptance thereof have D
been held not to be violative by this Court in some decisions to which we
may refer to now.

In Government of Andhra Pradesh & Ors. v. MA. Kareem & Ors.,
[1991] Supp. 2 SCC I83, this Court made a distinction between appointments
from one cadre to another, stating: E
".... It has to be appreciated that the cadre of the Chief Office is
altogether different from cadre of the district police offices/units where
the respondents were earlier appointed and they were not liable to be
transferred to the Chief Office. The service conditions at the Chief
Office were better, which was presumably the reason for the F
respondents to give up their claim based upon their past services. It
is true that the differential advantage was not so substantial as to
attract every LDC working in the district offices/units, and in that
situation the letter Annexure 'B' had to be circulated. However, so far
as the respondents and the two others were concerned, they found G
it in their own interest to forgo their claim of seniority on the basis
of their past services and they did so."

In U.P. Awas Evam Vikas Parishad & Ors. v. Rajendra Bahadur
Srivastava & Anr., [1995] Supp.4 SCC 76, this Court opined:
H
524 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A "... .In view of the unequivocal undertaking given by the first
respondent, it is no longer open to him to contend that his dismissal
(sic termination) order of 1971 was illegal. He approached the High
Court in 1991 seeking to quash his termination order of 1971 after
securing conditional reinstatement. His challenge after his appointment
on his representation and acceptance of conditions subject to which
B he was to be appointed is an attempt to overreach his goal in a
circuitous route. It is hard to accept that within a short period of five
months he has shown such a remarkable capabilities in discharging
duties as appeared to be commendable to the officers recommended
in the letters relied on by the respondent."
c Yet again in Union of India & Anr. v. Onkar Chand & Ors., [1998] 9
SCC 298, this Court was considering the effect of clause 7(iii) of the Recruitment
Rules, which was applicable therein. The said rule reads thus:

"Where a person is appointed by transfer in accordance with
D provision in the Recruitment Rules providing for such transfer in the
event of non-availability of a suitable candidate by direct recruitment
or promotion such transferees shall be grouped with direct recruits or
promotees, as the case may be, for the purpose of para 6 above. He
shall be ranked below all direct recruits or promotees, as the case
may be, selected on the same occasion. "
E
In that case, the Respondent was permanently absorbed on 31.12.1977
and interpreting the said Rules, this Court held that he must, therefore, take
his seniority below the persons in the department already in the cadre on that
date. It was further held:
F " .... On these factors, one cannot find fault with the fixation of seniority
of the said Onkar Chand by the appellants, which was challenged
before the Tribunal. The Tribunal was not right in holding that the
services rendered by the said Onkar Chand as a deputation promotee
in the officiating cadre of ACI0-11 from 2-1-1978 has to be reckoned.
G The earlier ad hoc promotion as ACI0-11 being against the deputation
quota that service cannot be claimed by a deputationist once he opted
for permanent absorption in the department. If he wanted to continue
the seniority in the deputation quota by running the risk of being
repatriated to his parent department, he ought not to have opted for
pennanent absorption. After opting for the pennanent absorption, he
H
INDU SHEKHAR SINGH v. STATE OF U.P. (SINHA, J.] 525
cannot claim the benefits of absorption as well as the service put in A
by him in the deputation quota as ACI0-11."

This Court in Anand Chandra Dash v. State of Orissa & Ors.; [1998]
2 SCC 560, while considering a reverse case, Le, when an employee who was
working as Senior Auditor in Revenue and Excise Department and subsequently
applied for the post of Senior Auditor in Labour Department, opined: B
" .... We find sufficient force in the aforesaid contention of the learned
counsel appearing for the appellant. That the appellant was appointed
as a Senior Auditor on being duly selected by the Member, Board of
Revenue on 28- 10- 1966 is not disputed. It is also not disputed that C
his services were brought over to the Labour Department on requisition
being made to all the government departments and on his name being
sponsored by the Revenue Department. It is no doubt true that the
Labour Department had indicated that the seniority will be determined
on the basis of the date of joining of the Labour Department itself but
the appellant had at no point of time agreed to the said condition, and D
on the other hand, unequivocally expressed his unwillingness to come
over to the Labour Department by letter dated 6- 1I- I 970 and without
consideration of the same the Revenue Department relieved him
requiring him to join in the Labour Department."

.:... It was thus, open to the Respondents herein not to agree to in spite E
of the said conditions as they had already been working with a statutory
authority, they, however, expressly consented to do so. They must have
exercised their option, having regard. to benefits to which they were entitled
to in the new post. Once such option is exercised, the consequences attached
thereto would ensue. p
[See HEC Voluntary Retd. Emps. Welfare Soc. & Anr. v. Heavy
Engineering Corporation Ltd. & Ors., JT (2006) 3 SC 102.

There is another aspect of the matter. The Appellants herein were not
joined as parties in the writ petition filed by the Respondents. In their G
. absence, the High Court could not have determined the question of inter se
_.. seniority. (See Prabodh Verma & Ors. v. State of U.P. & Ors., AIR ( 1985) SC
1_67. In Ram Janam Singh (supra) this Court held:

" .. .It is now almost settled that seniority of an officer in service is
determined with· reference to the date of his entry in the service which H.
526 SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A will be consistent with the requirement of Articles 14 and 16 of the
Constitution. Of course, if the circumstances so require a group of
persons, can be treated a class separate from the rest for any
preferential or beneficial treatment while fixing their seniority. But,
whether such group of persons belong to a special class for any
special treatment in matters of seniority has to be decided on objective
B consideration and on taking into account relevant factors which can
stand the test of Articles 14 and 16 of the Constitution. Normally,
such classification should be by statutory rule or rules framed under
Article 309 of the Constitution. The far-reaching implication of such
rules need not be impressed because they purport to affect the seniority
c of persons who are already in service."

There is yet another aspect of the matter, which cannot be lost sight
of. This Court, in D.R. Yadav & Anr. v. R.K. Singh & Anr., [2003] 7 SCC 110,
having regard to the statutory scheme, opined:

D "What was, therefore, relevant for the purpose of determination
of seniority even in terms of Rule 7 of the 1985 Rules, was the
continuous service rendered by the employees concerned "on similar
posts", which would mean posts which were available having been
legally created or borne on the cadre.

E The ad hoc or temporary promotion granted to the appellants on
3-5-1986 and 13-1-1987 respectively on non-existent post of Assistant
Executive Engineer would not, therefore, confer any right of seniority
on them. Thus, for all intent and purport for the purpose of
determination .of seniority, the appellants were not promoted at all.
Once they have been absorbed with Respondent I and other employees
F
similarly situated, their inter se seniority would be governed by the
statutory rules operating the field. The case of the appellants vis-a-
vis Respondent 2 although may be governed by the special rules, in
terms of Rule 7, the same has to be determined on the criterion of
continuous length of service including the service rendered in a
G Development Authority, Nagar Mahapalika, Nagarpalika or
Improvement Trust on similar posts. The appellants, it will bear
repetition to state, although were promoted at one point of time on
purely ad hoc basis to the post of Assistant Executive Engineer as
the said posts even in their parent authority were not of similar type,
H the same would not be relevant for the purpose of determining the
INDU SHEKHAR SINGH v. STATE OF U.P. [SINHA, J.] 527
inter se seniority. If the rule of continuous service in same and similar A
posts is to be resorted to, the date of initial appointment would be a
relevant criterion therefor. [See M Ramchandran v. Govind Ballabh,
[1999] 8 SCC 592, K. Anjaiah v. K. Chandraiah, [1998] 3 SCC 218,
Vinod Kumar Sharma v. State of UP., [2001] 4 SCC 675 and S.N.
Dhingra v. Union of India, [2001] 3 sec 125.] B
xx xx xx

As the post of Assistant Executive Engineer was not a cadre post,
· the appellants cannot be said to have been working on a higher post
for the purpose of Rule 7 of the 1985 Rules."
c
For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly.

However, in the event Respondent Nos.2 to 4 and 6 (intervener) herein·
intend to question the validity of the notification dated 9/12/2002, it would D
be open to them to do so, if they are aggrieved thereby. It is made clear that
we have not gone into the question of the validity or otherwise thereof.

The appeals are allowed. No costs.

B.K. Appeals allowed. E

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