DHARMENDRA PRASAD & ORS. versus SUNIL KUMAR & ORS.

Citation: [2019] 14 S.C.R. 763 · Decided: 06-12-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Disposed off

Judgment (excerpt)

A
B
C
D
E
F
G
H
763
DHARMENDRA PRASAD & ORS.
v.
SUNIL KUMAR & ORS.
(Civil Appeal No. 9247 of 2019)
DECEMBER 06, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Service Law:
Seniority – Determination of  – Of the employees of a
statutory body  – Different appointment letters issued to different
categories i.e. General, OBC, SC and ST at different time  – Date
of appointment of appellants (candidates higher in merit list) was
later than the date of appointment of respondents (candidates who
were lower in the merit list)  – Later seniority list declared on the
basis of the merit list  – Seniority list was challenged before the
Tribunal taking the plea that the list should be as per the date of
appointment and not merit list  –  Application dismissed  – In writ
petition High Court held that seniority in terms of  Regulation 23
has to be determined from the date of appointment  – Appeal to
Supreme Court  –  Held: Regulation 20 mandates that appointments
have to be made, in order in which the candidates stand in the list
prepared under Regulations 16(2), 17 or 18  –  Regulation 23 has
to be read in terms of Regulation 20  – Therefore, irrespective of
date of appointment, the seniority has to be fixed as per the merit
of the candidate  –  The seniority has also not been framed keeping
in view the Government Order dated 31st August, 2001 as
mandated to be followed by Regulation 6  – Seniority also could
not have been fixed as per Uttarakhand Government Servant
Seniority Service Rules, 2002  –  Such Rules since were framed
under proviso to Art. 309 of the Constitution, are not applicable
to a statutory body unless adopted by such body  –  Uttar Pradesh
Jal Board Subordinate Engineering Service Regulations, 1978 –
Regulations 6,16(2),17,18,20 and 23 – Uttarakhand Government
Servant Seniority Service Rules, 2002  – r. 5.
Disposing the appeals, the Court
HELD: 1.  The admitted facts are that the appellants are
higher in merit than the writ petitioners before the High Court
   [2019] 14 S.C.R. 763
763
A
B
C
D
E
F
G
H
764
SUPREME COURT REPORTS
[2019] 14 S.C.R.
but the writ petitioners were appointed earlier in point of time
than the appellants who came to be appointed subsequently by
the unique method of appointment resorted to by the Nigam. It
is also an admitted fact that the result was declared by the Nigam
of each category i.e. General, OBC, SC, ST as per their own
merit. [Paras 9 and 10] [768-C; 769-F]
2.Regulation 20 of the Uttar Pardesh Jal Board Subordinate
Engineering Service Regulations, 1978 mandates the appointing
authority to make the appointments from amongst the
candidates in order in which they stand in the list prepared under
Regulations 16(2), 17 or 18.  Any appointment made by the
employer, in contravention of the statutory Regulations cannot
defeat the rights of the appellants only because they have not
challenged the appointment of their juniors at an earlier point
of time. Regulation 23 provides that seniority of persons
appointed in any branch of service shall be made as per
substantive appointment.  The appointment in Regulation 23 has
to be read in terms of Regulation 20 mandating the manner of
appointment. Therefore, irrespective of the date of appointment,
the seniority has to be fixed as per the merit of the candidates
determined by the Selection Committee. [Para 17] [771-H; 772-
A-B]
3. However, Regulation 6 itself contemplated that
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 the statutory
Regulation 6, even 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. Admittedly, the seniority has not been
framed keeping in view the roster circulated on 31st August,
2001. [Para 18] [772-C-E]
4. The seniority cannot 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.  The
A
B
C
D
E
F
G
H
765
Rules were approved by the Board of the Nigam on 24th
September, 2007 proposing that the provision shall be made in
the proposed servi

Excerpt shown. Read the full judgment & AI analysis in Lexace.