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State Of Uttaranchal And Another v. Madan Mohan Joshi And Others
Factual and Procedural Background
The dispute concerns inter se seniority among Lecturers of Kumaon University. The first respondent, Dr. Madan Mohan Joshi, was appointed as an ad-hoc Lecturer on 22 September 1975 in Government P.G. College, Almora. When the college became a University Campus College, he and other lecturers were treated as being on deputation to the University (cut-off date: 16 August 1977).
Under the U.P. Regularisation of Ad-hoc Appointments Rules, 1979, 355 ad-hoc Lecturers were regularised on 22 May 1980. Nine Lecturers on deputation, including Dr. Joshi, were omitted. After representations, their services were regularised on 11 July 1980, expressly placing them junior to those regularised earlier.
In 1988 the State issued a second order fixing Dr. Joshi’s substantive appointment from 1 July 1983, with seniority “to be determined later.” After the creation of the State of Uttaranchal (now Uttarakhand), a seniority list placed Dr. Joshi at Serial No. 137 and Smt. Savita (Mohan) Dhondyal—regularised on 22 May 1980—at Serial No. 102. Dr. Joshi objected and, when unrevised, filed Writ Petition No. 71 of 2004 before the Uttaranchal High Court, which allowed his petition on 21 March 2006.
The State appealed to the Supreme Court, resulting in the present judgment.
Legal Issues Presented
- Whether the Uttaranchal High Court erred by not applying the Uttaranchal Higher Education (Group A) Service Rules, 2003 when determining seniority.
- Whether non-impleadment of directly affected Lecturers (notably Smt. Savita (Mohan) Dhondyal) rendered the High Court judgment unsustainable.
- Whether seniority should be regulated by the date of regularisation orders under the 1979 Rules or by subsequent State rules.
Arguments of the Parties
Appellant — State of Uttarakhand
- The 2003 Service Rules, being statutory, exclusively govern seniority and were ignored by the High Court.
- Failure to join affected Lecturers violated principles of natural justice because they would suffer civil consequences.
Respondent — Dr. Madan Mohan Joshi
- The dispute is governed by the pre-2003 U.P. Regularisation Rules; therefore the High Court correctly applied those provisions.
- Impleading individual Lecturers was unnecessary as no relief was sought against them, relying on A. Janardhana v. Union of India (1983) 3 SCC 601.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prabodh Verma v. State of U.P. (1984) 4 SCC 251 | Mandatory impleadment of parties whose rights will be vitally affected by a writ decision. | Relied on to hold that Savita (Mohan) Dhondyal and similarly placed Lecturers were necessary parties. |
| A. Janardhana v. Union of India (1983) 3 SCC 601 | When relief is directed only against the State, all employees need not be impleaded. | Distinguished; Supreme Court noted that in the present case direct seniority rights of specific individuals were at stake. |
| State of U.P. v. Dinkar Sinha (2007) 10 SCC 548 | Seniority is a civil right. | Cited to emphasise that alteration of seniority has civil consequences, necessitating audi alteram partem. |
Court's Reasoning and Analysis
The Court examined the procedural infirmity in the High Court’s ruling. It noted that:
- The High Court decided seniority without the presence of Lecturers who would be directly downgraded, violating the principle laid down in Prabodh Verma.
- The statutory framework had changed with the promulgation of the Uttaranchal Higher Education (Group A) Service Rules, 2003. Whether these rules apply retrospectively or prospectively was never analysed.
- Because seniority confers a civil right, any adjudication affecting it must involve all interested parties. The High Court’s omission amounted to denial of natural justice.
- Reliance placed by the respondent on A. Janardhana was misplaced because, unlike that case, the present writ petition sought a relative advantage over identifiable individuals.
Consequently, the Supreme Court found the High Court judgment legally unsustainable and opted to remit the case for fresh determination.
Holding and Implications
APPEAL ALLOWED; IMPUGNED JUDGMENT SET ASIDE; MATTER REMITTED TO THE HIGH COURT.
The High Court must re-hear the writ petition after impleading Smt. Savita (Mohan) Dhondyal and/or other affected Lecturers, examine the applicability of the 2003 Service Rules, and decide the seniority dispute within eight weeks of receiving the Supreme Court’s order. No new substantive precedent on seniority was set; the decision primarily reinforces procedural requirements of natural justice in service matters.
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. The first respondent was appointed on an ad hoc basis as a Lecturer in Government P.G College, Almora by the State of Uttar 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 as 16-8-1977.
4. The State of Uttar Pradesh framed the U.P Regularisation of Ad Hoc Appointments (on Posts within the Purview of the Public Service Commission) Rules, 1979, the relevant provisions whereof read as under:
“4. Regularisation of ad hoc appointments.—(1) Any person who—
(i) was directly appointed on ad hoc basis before 1-1-1977 and is continuing in service, as such, on date of commencement of these Rules;
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and
(iii) has completed or, as the case may be, after he has completed three years' continuous service,
shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.”
5. Pursuant to and in furtherance of the said Rules, services of 355 ad hoc Lecturers were regularised. 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) Dhondyal who had also been appointed as an ad hoc Lecturer on 17-4-1975 and, thus, being junior to the first respondent was regularised.
6. 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:
“The appointing authority in exercise of powers conferred by Rule 5 of the U.P Regularisation of Ad Hoc Appointments (on Posts within the Purview of the Public Service Commission) Rules, 1979 issued by the Department of Personnel vide its Notification No. 19/8/75[1] dated 14-5-1979, and in view of the recommendations made by the Selection Committee constituted for regularisation of the ad hoc Lecturers working in various government colleges under the Directorate of Education prior to 1-1-1977 in the pay scale of Rs 700-1600, hereby regularises appointments of the Lecturers with effect from the date of issuance of this order and they are being given temporarily regular appointments on the posts of Lecturers w.e.f 11-7-1980.
However, the seniority of these Lecturers shall be according to their serial number given in the enclosed annexure and they will be junior to those Lecturers who have been regularised and appointed prior to the date of regular appointment of these Lecturers.”
Aggrieved by the said order, they made a representation.
7. By an Order dated 9-6-1988, the services of the respondents were appointed (sic regularised) with effect from 1-7-1983, it was stated:
“Following officers of the government colleges working as Lecturers in Botany Science in the pay scale of Rs 2200-4000 are hereby appointed on probation period of two years on the same dates with effect from the dates mentioned against their names and their earlier services would be counted towards this probation period and they are hereby regularised on the said post and in the same pay scale. However, their seniority would be determined later on.
Sl. No. Name and designation of officer who has been regularised Date of regularisation Details of vacancies 1-20. * * * 21. Shri Madan Mohan Joshi, Lecturer in Botany Science 1-7-1983 Regularised on the post w.e.f 1-7-1983 vide G.O No. 2058/15 84-11-12-46/81 dated 1-8-1984.”
8. The State of Uttarakhand then known as the State of Uttaranchal has been carved out from the State of Uttar Pradesh. In the seniority list, the first respondent was placed at Serial No. 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:
“Dr. Joshi was appointed on ad hoc basis and pursuant to his appointment he joined Almora College on 22-9-1975. Later on his services were approved by the Director of Education (Higher Education), Uttar Pradesh, Allahabad on 27-3-1976 with effect from the date of his joining the post. His name in the seniority list would have been mentioned at Sl. No. 102 after the name of Smt Deveshwari Bisht on the basis of his order of first appointment. But it would have been possible if his name would have been considered in the Order of regularisation dated 22-5-1980. It appears that his name was not included in the said Order dated 22-5-1980 although Shri Joshi was fully eligible for being considered in the said Order dated 22-5-1980 according to the Regularisation Rules of 1979. Therefore, if the Government so wishes, his Order of regularisation dated 11-7-1980 should be amended to the above effect.”
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 of 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 the 2003 Rules, the High Court has not committed any illegality and 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 (1983) 3 SCC 601.
13. Services of the first respondent as also several others including Savita (Mohan) Dhondyal, as noticed hereinbefore 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:
“Under Rule 4(3) of the Uttar Pradesh Regularisation of Ad Hoc Appointments (on Posts within the Purview of Public Service Commission) Rules, 1979 framed vide Notification No. 19/8/75(1) dated 14-5-1979 by the Personnel Department, on the recommendation of the Selection Committee constituted for regularisation of Lecturers appointed on ad hoc basis in the pay scale of Rs 700-1600 prior to 1-1-1977 in the U.P Government Inter Colleges under the Directorate of Higher Education and in exercise of powers under Rule 5 of the aforesaid Rules the competent authority is pleased to regularise ad hoc appointment of Lecturers mentioned in Schedule 1 w.e.f the date of issuance of this order and they are given regular temporary appointment on the post of Lecturer w.e.f 11-7-1980.
The seniority of these Lecturers will be as per the serial given in the Schedule and they will be junior to the regularly selected Lecturers who have been appointed prior to the regular appointment of these Lecturers.”
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. The Rules were 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:
“20. Seniority.—(1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in that case it will mean the date of issue of order:
Provided that—
(a) if the appointment order specified a particular backdate with effect from which a person is appointed, substantively, that date will be deemed to be the date of order of substantive appointment and in other cases it will mean the date of issue of the order;
(b) if more than one order of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (2) of Rule 17.
(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:
Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when the post is offered 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.”
The said Rules also contain a power of relaxation being Rule 25 which is to the following effect:
“25. Relaxation of the conditions of service.—Where the State Government is satisfied that the operation of any rule regulating the conditions of service of a person appointed to the service causes undue hardship in any particular case, it may notwithstanding anything contained in the rules applicable to the case, by order dispense with or relax the requirements of that rule to such extent and subject to such conditions, as it may consider necessary, for dealing with the case in a just and equitable manner:
Provided that where a rule has been framed in consultation with the Commission that body shall be consulted before the requirements of the rule are dispensed with or relaxed.”
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.
16. 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 U.P v. Dinkar Sinha (2007) 10 SCC 548, (2007) 7 Scale 8.) The respective rights of seniority of the parties, thus, required determination in their presence.
17. A three-Judge Bench of this Court in Prabodh Verma v. State of U.P (1984) 4 SCC 251, AIR 1985 SC 167 stated the law as under:
“28. … A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.”
18. Reliance placed on A. Janardhana (1983) 3 SCC 601 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:
“36. … In this case, the appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus, the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents.”
19. For the reasons aforementioned, we are of the opinion that the interest of justice would be subserved 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 a period of eight weeks of the communication of this order.
20. The appeal is disposed of accordingly.
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