Supreme Court of India
D.R. YADAV AND ANR.versusR.K. SINGH AND ANR.
- Citation
- 2003 INSC 319
- Decided
- 18 July 2003
- Disposal
- Dismissed
- Bench
- V N KHARE
Holding
The Court held that where special service rules framed under a statute exist, they supersede the general rules made under Article 309, and ad‑hoc promotions to non‑existent posts do not create seniority, so seniority must be fixed under the 1985 Centralised Service Rules based on continuous service in similar cadre posts.
Summary
The petitioners, D.R. Yadav and others, challenged a seniority list issued by the Uttar Pradesh Government after they and the respondent were absorbed into the U.P. Development Authorities Centralised Service. The dispute centered on whether seniority should be fixed under the general Uttar Pradesh Government Servants Seniority Rules, 1991 (framed under Article 309) or the special U.P. Development Authorities Centralised Service Rules, 1985. The Supreme Court held that the proviso to Article 309 makes the general rules applicable only until a statute‑based special rule exists, and since the 1985 rules were already operating, they prevail. Moreover, the ad‑hoc promotions of the petitioners to non‑existent posts of Assistant Executive Engineer did not create any right to seniority. Consequently, seniority must be determined under Rule 7 of the 1985 rules based on continuous service in similar cadre posts, and the High Court’s order was upheld.
Issues considered
- Whether the general Uttar Pradesh Government Servants Seniority Rules, 1991 (made under Article 309) apply to determine inter se seniority when special U.P. Development Authorities Centralised Service Rules, 1985 exist.
- Whether ad‑hoc promotion to a non‑existent post confers any seniority rights.
- Whether seniority under the 1985 rules should be fixed on the basis of continuous service on similar posts, and what constitutes a 'similar post'.
- Whether the doctrine of generalia specialiabus non derogant requires the special rules to override the general rules.
- Whether the High Court erred in applying the 1991 rules despite the presence of the 1985 special rules.
Legislation cited
- Constitution of Indias. Article 309
Subjects
seniorityservice rulesArticle 309special vs general rulesad hoc promotioncentralised serviceUttar Pradesh service lawinter se senioritygeneralia specialiabus non derogant
Judgment
D.R. YADAV AND ANR. A
v.
R.K. SINGH AND ANR.
JULY 18, 2003
[V.N. KHARE CJ. AND S.B. SINHA, J.] B
Constitution of India, 1950-Article 309 proviso-Service rules framed
thereunder-Application of-Held: Rules framed thereunder applicable for a
transitory period so long as statute or statutory rules governing the service C
condition are not enacted-Once special rules framed it would prevail over
the general rules.
Service law-Uttar Pradesh Government Servants Seniority Rules,
1991-U.P. Development Authorities Centralised Service Rules, 1985-
Seniority-Fixation of-Absorption of employees from different authorities in D
Central Services-Appel/ant promoted on ad hoc basis against non existent
post of Assistant Executive Engineer-Respondent provisionally promoted to
the post of Assistant Engineer on reference basis-Absorption of appellants
and respondent in the Central Services on the post of Assistant Engineer-
Inter se seniority dispute-For determination of seniority one rule being
general rule-I 991 Rules and other being the special rule-I 985 Rules operating E
in the field-High Court holding general rule-I 99 I Rules applicable-On
appeal held: As appellants granted ad hoc promotion on non-existent posts,
it would not confer any right of seniority-Once appellants absorbed with
employees similarly situated, their inter se seniority would be governed by
statutory rules-1985 Rules under which seniority is determined on the criteria F
of continuous service rendered by employees 'on similar posts', the posts
would be the ones legally created or borne on cadre, including service
rendered in Development Authorit)', Nagar Mahapalika, Nagarpalika or
Improvement Trust on similar posts-Post of Assistant Executive Engineer not
being cadre post, appellants not working on a similar post for the purpose
of Rule 7 of 1985 Ru/es-Hence Order of High Court upheld-Constitution G
of India, 1950, Article 309 proviso.
In terms ofU.P. Urban Planning and Development Act, 1973 Development
Authority was constituted whereupon all posts borne on the development wing
of other local bodies like Nagar Mahapalika or Municipal Corporation stood
583 rI
584 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A transferred. Development Authority then invited the applications for the post
of Assistant Engineer (C). Appellants applied for the same. Appellant No. I
was appointed on 9.11.1978 and Appellant No: 2 on 12.7.1979. Respondent
No. I was appointed on 12.10.1976. In 1984, State Government created
Developmeut Authorities Centralised Services and employees from different
authorities were absorbed in Central Services. Respondent No. 1 was
B provisionally promoted to the post of Assistant Engineer on reference basis
on 3.5.1986 whereas the appellants were promoted on non-existent post of
Assistant Executive Engineer on ad hoc basis. Appellants and respondent No.
1 were finally absorbed in the Centralised Service on the post of Assistant
Engineers on 14.5.1987. State Government then issued a seniority list.
C Dispute of inter se seniority arose between the appellants and the respondent.
At that time two rules were operating for determination of seniority, Uttar
Pradesh Government Servants Seniority Rules, 1991-General Rule and U.P.
Development Authorities Centralised Service Rules, 1985-Special Rules.
High Court held that for the purpose of determination of inter se seniority
1991 Rules shall apply. Hence the present appeals.
D
Appellants contended that the High Court erred in applying 1991 Rules
as it did not consider the proviso to Article 309 of the Constitution that the
Governor can frame a rule so long as the State or the concerned statutory
authorities do not make any provisions laying down the conditions of service
E by or under a statutory enactment; that once a legislation has come into being
and rules have been framed governing the field, the general rules made by
the Governor in terms of proviso to Article 309 must give way to special rules;
and that as the appellants were absorbed in the centralized services, their
seniority shall be determined in terms of Rule 7of1985 Rules.
F Respondents contended that assuming that the special rules shall apply,
the same would be ofnot much relevance as the seniority has to be determined
in terms of sub-Rule (I) of Rule 7 of1985 Rules on the criteria of continuous
length of service including the service rendered in a Development Authority,
Nagar Mahapalika, Nagarpalika or Improvement Trust on similar posts, and
as the manner for determination of continuous length of service is not provided
G in the said s:ib-rule, the general rule must be taken recourse to for the said
purpose.
Dismissing the appeals, the Court
HELD: I. Under proviso to Article 309 of the Constitution of India, there
H cannot be any doubt whatsoever that rules framed thereunder would apply so
D.R. YADAVv. R.K.SINGH 585
long as a statute or statutory rules of any other subordinate legislation A
governing the conditions of service are not enacted or made or not otherwise
operating in the field. In other words, rules made under proviso to Article
309 are for a transitory period and the same would give way to the special
rules once framed. However, if a statute or rules made thereunder was/were
already operating in the field, the general rules made under proviso to Article B
309 would not apply to the Services created thereunder. (594-E-Fl
2.1. In the instant case, the ad hoc or temporary rcoi;;ction granted to
the appellants on non-existent posts of Assistant Executive Engineer would
not confer any right of seniority on them. Thus, for all inten1 and purport for
the purpose of determination of seniority, the appellants were not promoted at C
all. Once they have been absorbed with respondent No.I and other employees
similarly situated, their inter se seniority would be governed by the statutory
rules operating in the field. For the purpose of determination of seniority in
terms of Rule 7 of U.P. Development Authorities Centralised Service Rules,
1985, continuous service rendered by the concerned employees 'on similar
posts', which would mean posts which were available having been legally D
created or borne on the cadre is relevant. The case of appellants vis-a-vis
Respondent No.2 although may be governed by the special rules, in terms of
Rule 7, seniority has to be determined on the criteria of continuous length of
service including the service rendered in a Development Authority, Nagar
Mahapalika, Nagarpalika or Improvement Trust on similar posts. The E
appellants were promoted on purely ad hoc basis to the posts of Assistant
Executive Engineer, the said posts even in their parent authority were not of
similar type, the same would not be relevant for the purpose of determining
the inter se seniority. If the rule of continuous service in same and similar
posts is to be resorted to, the date of initial appointment would be a relevant
criteria therefor. Further as the post of Assistant Executive Engineer was F
not a cadre post, the appellants cannot be said to be working on a similar post
for the purpose of Rule 7 of the 1985 Rules. Hence, the order of High Court
is upheld. (595-E-H; 596-C, E(
M. Rnmachandran v. Govind Ballabh and Ors., 1199918 SCC 592; K.
Anjaiah and Ors. v. K. Chandraiha and Ors., (1998( 3 SCC 218; Vinod Kumar G
Sharma v. State of UP. and Anr., 12001 ( 4 SCC 675; S.N. Dhingra and Ors. v.
Union of India and Ors, (20011 3 SCC 125; Kaushal Kishore Singh v. Dy.
Director of Educalion and Ors., (20021 AIR SCW 19; Md. Israi/s and Ors. v.
State of West Bengal and Ors., 120021 AIR SCW 68 and Chandra Pradesh
Tiwari and Ors. v. Shakzmtala Shukla and Ors., 12002( 6 SCC 127, referred
to. H
586 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5005-5006 of
2003.
From the Judgment and Order dated 23.5.2002 of the Allahabad High
Court in W.P. No. 1780/2000 and 195 of2001.
B Rakesh Dwivedi, Ms. Niranjana Singh, for the Appellants.
H.N. Salve, Sunil Kumar Jain, Manish Kumar, K.M. Gupta, Ravi Prakash
Mehta and Ms. Deepti R. Mehrotra for the Respondents.
The Judgment of the Court was delivered by
c S.B. SINHA, J. Leave granted.
Dispute of inter se seniority between the appellants and the respondent
No. I is in question in this appeal which arises out of a judgment and order
dated 23.5.2002 passed by a Division Bench of the High Court of Judicature
D at Allahabad, Lucknow Bench in Writ Petition No. 1780(S/B) of2000 and Writ
Petition No. 195(S/B) of 200 I.
FACTUAL MATRIX:
The Legislature of the State of U.P. enacted U.P. Urban Planning &
E Development Act, 1973 (hereinafter referred as '1973 Act'). The said Act was
enacted to provide for the development of certain areas of Uttar Pradesh
according to the plan and for matters connected therewith and ancillary
thereto.
By reason of Section 4 of the said Act an Authority to be called the
F Development Authority for any development area was constituted. Section 5
deals with the staff of the said authority. Sub-section (2) of Section 5of1973
Act contemplates that subject to such control and restrictions as may be
determined by general or special orders of the State Government, the authority
may appoint such number of other officers and employees as may be necessary
G for the efficient performance of its functioning. The reason for the said
enactment inter alia is stated to be:
"In the developing areas of the State of Uttar Pradesh the problems
of town planning and Urban development need to be tackled resolutely.
The existing local bodies and other authorities in spite of their best
H efforts have not been able to cope with these problems to the desired
D.R. YADAY v. R.K. SINGH [SINHA, J.] 587
extent. In order to bring about improvement in this situation, the State A
Government considered it advisable that in such developing areas,
Development Authorities patterned on the Delhi Development
Authority be established. As the State Government was of the view
that the Urban development and planning work in the State had
already been delayed it was felt necessary to provide for early
establishment of such authorities." B
By reason of the provisions of the said Act, thu~, other statutes
governing the field relating to town planning and urban development remained
suspended in terms of Sub-section (I) of Section 59 of the Act. Sub-Section
(3) of Section 59 reads as under:
c
"On and from the constitution of the Development Authority in relation
to a development area which includes the whole of a city as defined
in the Uttar Pradesh Municipal Corporations Act, 1959, all posts borne
on the establishment of the Municipal Corporation of that city
exclusively in connection with its activities under Chapter XIV of the D
said Adhiniyam or under the Uttar Pradesh (Regulation of Building
Operations) Act, 1958, immediately before the date of the constitution
of the Development Authority, not being a post governed by the Uttar
Pradesh Palika (Centralized) Services Rules, I956 (hereinafter in this
section referred to as the Centralized Services), shall, on and from
such date, stand transferred to the Development Authority with such E
designations as the Authority may determine and officers and other
employees who are not members of any Centralised Services, serving
under the Municipal Corporation of that city not exceeding the number
of posts so transferred >hall be selected in accordance with such
directions as may be issued by the State Government for being F
appointed on the said posts and on such selection shall stand
transferred to and become officers and other employees of the
Development Authority and shall as such hold office by the same
tenure, at the same remuneration and on the same terms and conditions
of service as they would have held the same if the Authority had not
been constituted, and shall continue to do so unless and until such G
tenure, remuneration and terms and conditions are duly altered by the
Authority.
Provided that any service rendered under the Municipal Corporation
by any such officer or other employee before the constitution of the
Authority shall be deemed to be service rendered under the Authority. H
588 SUPREME COURT REPORTS [2003] SUPP. I S.CR.
A Provided further that the Authority may employ any such officer or
other employee in the discharge of such functions under this Act as
it may think proper, and every such officer or other employee shall
discharge those functions accordingly."
In terms of Section 4 of the said Act, Lucknow Develo')ment Authority
B was constituted on 13.09.1974 whereupon all posts borne on the development
wing of the other local bodies like Nagar Mahapalika or Municipal Corporation
etc. stood transferred thereto.
Pursuant to or in furtherance of applications having been invited to till
C up the posts of Assistant Engineer (C), the appellants applied therefor and
were subsequently appointed. Appellant No. I joined the post of Assistant
Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on
12.07.1979. Respondent No. I, however, was admittedly appointed on or about
12.10.1976.
D The State Government thereafter created Development Authorities
Centralised Service with effect from 22.10.1984 by iriserting Section 5-A therein.
In terms of Sub-Section (2) of Section 5-A, a person serving on the posts
included in such service immediately before such creation shall finally or
provisionally be absorbed in the Development Authorities Centralised Service
if he was confirmed in his post or if he was holding temporary or officiating
E appointment, as the case may be. The appellants were absorbed in the posts
of Assistant Engineer.
It is not in dispute that Respondent No. I was provisionally promoted
to the Post of Assistant Engineer on purely reference basis by an Oftic1:
Memorandum dated 3rd May, 1986. Appellants were said to have been
F promoted to the post of Assistant Executive Engineer on purely ad hoc basis
in terms of Office Memorandums dated 3rd May, 1986 and 31st January, 1987.
The appellants as also Respondent No. I were finally absorbed in the
Centralised Service on the post of Assistant Engineers by an Office
Memorandum issued on 14 May, 1987.
G The State Government issued a senionty list in terms of Office
Memorandum dated 12th April, 1996. The said seniority list was the subject
matter of Writ Petition tiled by Respondent No. 1. In the meantime, Appellant
No. 1 was promoted to the Post of Chief Engineer resulting in tiling of second
Writ Petition before the Lucknow Bench of Allahabad High Court by the
H Respondent No. l. However; during pendency of the said Writ Petition, the
D.R. YADAV v. R.K. SINGH [SINHA, J.] 589
order of promotion of Appellant No. I was rescinded on 29.11.200 I. Several A
applications thereafter were filed before the State Public Services Tribunal
questioning the said seniority list and the promotion to the Posts of Executive
Engineer and Chief Engineer. The Tribunal allowed the said applications
whereagainst the State of Uttar Pradesh preferred several writ applications.
The writ petitions together with the writ applications pending before it were B
taken up for hearing by the High Court and by reason of the impugned
judgment dated 23.05.2002 it was held as follows:
"Having examined the materials on record and the submissions made
by the parties and in the light of various decisions of the Supreme
Court referred hereinabove, we find no infirmity in the impugned C
judgment of the Tribunal and the Tribunal has not erred in directing
the State Government to determine the seniority of the claimants and
to grant promotions with effect from the date their juniors have been
so promoted.
Therefore, while affirming the judgments of the Tribunal, we direct D
that in the light of the decision of the Apex Court in the case of
Mohan Karan 's' case, the seniority in the cadre of Junior Engineers,
Assistant Engineers and Chief Engineers shall be counted from the
date of initial appointment and the members of the Centralised Service
who had rendered service in other departments on similar/ equivalent
posts, shall be decided in the light of the decisions of the Supreme E
Court and the observations made hereinabove. The State Government
shall make endeavour to comply directions of the Tribunal with respect
to fixing of seniority and promotion of the claimant - respondents
within three months."
It is not in dispute that two different rules relating to determination of F
seniority were operating in the field; one being a general rule known as 'The
Uttar Pradesh Government Servants Seniority Rules, 1991'; the other being
the special rules known as 'U.P. Development Authorities Centralised Service
Rules, 1985' framed by the State of Uttar Pradesh in exercise of its powers
conferred under Section 55 of the Uttar Pradesh Urban Planning and G
Development Act, 1973 read with Section 5-A thereof.
RELEVANT STATUTORY PROVISIONS:
The relevant rules of U.P. Development Authorities Centralised Service
1. 1199813 sec 444. H
590 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Rules, 1985 which are material for the purpose of this case read as under:
"PART II
CADRE AND STRENGTH
3. (I) There shall be the following categories of the posts in the cadre
of the service and they shall consist of the posts mentioned against
13 them ~
Service Posts included in the service Scales of Pay
in Rs
2 J'
c I to. Ill Omitted
IV. Town I. Mukhya Nagar Niyojak 1780-2300
Planning & 2. Nagar Niyojak 1250-2050
Architectural 3. Sahayak Nagar Niyojak 850-1720
4. Vastuvid/Statistical Assistant 570-1100
D 5 to I 0 Omitted
V to VIII Omitted
Note. - The undemoted posts, as specified above, shall include
the post or posts mentioned against them as also the posts carrying
identical scales of pay in the same or equivalent cadre.
E Post Post(s) included
(I) to (8) Omitted
(9) Mukhya Nagar Niyojak Vastuvid Niyojak
p (I 0) Sahayak Nagar Niyojak Vastuvid (Rs. 850-1720)/Sahayak
Vastuvid/Landscape Vastuvid/
Vastuvid Niyojak/Research Officer.
(I I) to (22) Omitted
Note. - (2) The post or posts specified above but not existing in any
G Development Authority on the date of enforcement of these rules,
shall not mean to have been created or come into existence by virtue
of the provisions of this rule.
7. (1) Notwithstanding anything in Rule 28 the seniority of such
officers and other employees who are finally absorbed in the service
H under sub-section (2) of Section 5-A of the Act shall be determined
D.R. YADAV v. R.K. SINGH [SINHA . .I.] 591
on the criterion of continuous length of service including the services A
rendered in a Development Authority, Nagar Mahapalika, Nagarpalika
or Improvement Trust on similar posts.
21. Procedure for recruitment by promotion: Recruitment by promotion
shall be made on the basis of seniority subject to the rejection unfit
(in accordance with the Uttar Pradesh Promotion by selection in B
Consultation with Public Service Commission (Procedure) Rules, 1970
as amended from time to time.
28. (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 C
the order in which their names are arranged in the appointment order:
Provided that 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 (3) of Rule 25.
D
* * *
(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 relevant provisions of Uttar Pradesh Government Servants Seniority
Rules, 1991 read as under: E
"2. These Rules shall apply to all government servants in respect of
whose recruitment and conditions of service, rules may be or have
been made by the Governor under the proviso to Article 309 of the
Constitution.
F
3. These Rules shall have effect notwithstanding anything to the
contrary contained in any other service rules made hereto before.
4. In these Rules, unless there is anything repugnant in the subject
or context, the expression -
G
(f) 'service' means the service in which the seniority of the member
of the service has to be determined;
(g) 'service rules' means the Rules made under the proviso to Article
309 of the Constitution, and where there are no such rules, the
executive instructions issued by the Government regulating the H
592 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A recruitment and conditions of service of persons appointed to the
relevant service;
6. Where according to the service rules, appointments are to be made
only by promotion from a single feeding cadre, the seniority inter se
of persons so appointed shall be the same as it was in the feeding
B
cadre.
PRIMAL QUESTION:
The dispute between the parties before the High Court as stated in the
C impugned judgment is as under:
"The crux of the matter in these petitions is fixation of seniority and
consequential promotions. As mentioned earlier with effect from
12.6.1973 the Uttar Pradesh Planning and Development Ordinance,
1973 was promulgated for the purpose of creating various development
authorities in Uttar Pradesh. The said ordinance later on became the
D
Act (U.P. Act No. 11 of 1973) which came into existence on 7.11.1973.
In pursuance of the said ordinance and Act, various development
authorities were created through notification issued in exercise of the
powers under Section 4 of the said Act of 1973. In the development
authorities, initially besides other staff, Junior Engineers and Assistant
E Engineers were appointed by the concerned authorities of respective
development authorities. Thereafter, some Junior Engineers were
promoted to the post of Assistant Engineer in 50% promotion quota
and some Assistant Engineers were promoted to the post of Executive
Engineer."
F SUBMISSIONS:
Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the
appellants raised a short question in this appeal. The submission of learned
counsel is that the High Court went wrong in applying the 1991 rules relying
on or on the basis of decision of this Court in Mohan Karan (supra) without
G effectively considering the provisions of Article 309 of Constitution of India.
It clearly stipulates that in terms of proviso appended thereto the Governor
can frame a rule so long as the State or the concerned statutory authorities
do not make any provisions laying down the conditions of service by or
under a statutory enactment. In other words, once a Legislation has come into
H being and rules have been framed thereur.der governing the field, the general
D.R. YADAV v. R.K. SINGH [SINHA, J.] 593
rules made by the Governor in terms of proviso appended to Article 309 of A
the Constitution of India must give way to the special rules framed under the
statute. Thus, when there exist Special Rules, General Rules cannot be applied.
Strong reliance in this behalf has been placed on Chandra Prakash Tiwari
and Ors. v. Shakuntala Shukla and Ors., [2002] 6 SCC 127.
The learned counsel would further submit that the decision of this B
Court in Mohan Karan, (supra) does not lay down a good law.
Mr. Dwivedi would urge that as the appellants were absorbed in the
centralised services, their seniority shall be detennined in tenns of Rule 7 of
the 1985 Rules. He would in this connection lay emphasis on the words 'on C
similar posts' occurring in Rule 7.
Mr. Harish Salve, the learned Senior Counsel, on the other hand, would
submit that assuming that the special rule shall apply in the instant case; the
same would be of not much relevance as the seniority has to be detennined
in tenns of Sub-Rule (I) of Rule 7 of 1985 Rules on the criteria of continuous D
length of service including the service rendered in a Development Authority,
Nagar Mahapalika, Nagarpalika or Improvement Trust on similar posts, and
as the manner for detennination of continuous length of service is not provided
in the said sub-rule, the general rule must be taken recourse to for the said
purpose. In this connection our attention has been drawn to the cadre of
Service contained in Rule 3 of the 1985 Rules. E
FINDINGS
It appears that having regard to the absorption of the employees from
different authorities in the Centralised Service on 22.10.1984, according to
the High Court, some sort of chaos was created amongst the members of the F
Service. The High Court relying on or on the basis of a Division Bench
decision of this Court in Mohan Karan' case (supra) he.Id that the provisions
of the Rules 1991 shall apply for the purpose of detennination of inter se .
seniority. Therein it was held:
14. We have already extracted Rule 6 of these Rules, which relates G
to seniority where the appointments are by promotion only from a
single feeding cadre. But for Rule 3 above mentioned, we would
have accepted the contentions of learned counsel for the appellant
and upset the judgment ·Of the High Court. Rule 3, in our view,
overrides all other rules made earlier in other services in the State, H
594 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A whereas Rule 7 of the Centralised Services Rules has the overriding
effect against Rule 28 of those Rules only. Further, the title of 1991
Rules clearly suggests that the seniority among the government
servants in U.P. should be fixed in the light of these Rules. Therefore,
we are inclined to hold that Rule 6 of the U.P. Government Servants'
Seniority Rules, 1991 cannot be ignored as it has overriding effect on
B Rule 7 of the Centralised Services Rules.
The 1991 Rules were framed by the Governor of Uttar Pradesh in
exercise of his power conferred under the proviso appended to Article 309
of the Constitution of India. The Proviso appended to Article 309 of the
C Constitution reads thus:
"Provided that it shall be competent for the President or such person
as he may direct in the case of services and posts in connection with
the affairs of the Union, and for the Governor of a State or such
person as he may direct in the case of services and posts in connection
D with the affairs of the State, to make rules regulating the recruitment,
and the conditions of service of persons appointed, to such services
and posts until provision in that behalf is made by or under an Act
of the appropriate Legislature under this article, and any rules so
made shall have effect subject to the provisions of any such Act."
E On a plain reading of the said provision, there cannot be any doubt
whatsoever that rules framed thereunder would apply so long as a statute or
statutory rules or any other subordinate legislation governing the conditions
of service are not enacted or made or not otherwise operating in the field. In
other words, rules made under proviso to Article 309 of the Constitution are
for a transitory period and the same would give way to the special rules once
F framed. However, if a statute or rules made thereunder was/were already
operating in the field, the general rules made under proviso to Article 309
would not apply to the Services created thereunder.
The submission of Mr. Dwivedi to the aforementioned extent appears
G to be correct.
In the event two conflicting rules are operating in the same field, the
doctrine of generalia specialiabus non derogant shall apply. It was so held in
Chandra Prakash Tiwari (supra).
But the question which arises for consideration in these appeals does
H
D.R. YADAV v. R.K. SINGH [SINHA. J.] 595
not solely depend on the applicability of the general rules vis-a-vis the special A
rules.
It is true that the appellants were sought to be promoted to the Posts
of Assistant Executive Engineer. The said posts, however, were not available.
They were, therefore, absorbed ultimately in the posts of Assistant Engineer.
The State of U.P. in its counter affidavit stated: B
"It is stated that petitioner No. I was promoted on temporary basis by
Lucknow Development Authority till_ further orders on the post of
Assistant Executive Engineer. It is relevant to mention that on
22.10.1984, the petitioners were working on' the post of Assistant
Executive Engineer. Upon creation of the U.P. Development C
Authorities Centralised Service, since there was no post of Assistant
Executive Engineer in the said service, hence the petitioners were
absorbed on the post of Assistant Engineer in the service."
What was, therefore, relevant for the purpose of determination of
seniority even in terms of Rule 7 of the 1985 Rules, was the continuous D
service rendered by the concerned employees 'on similar posts', which would
mean posts which were available having been legally created or borne on the
cadre.
The ad hoc or temporary promotion granted to the appellants on E
03.05.1986 and 13.01.i 987 respectively on non-existent posts 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 No. I and other employees similarly situated, their
inter se seniority would be governed by the statutory rules operating in the F
field. The case of the appellants vis-a-vis Respondent No. 2 although may be
governed by the special rules, in terms of Rule 7, the same has to be determined
on the criteria of continuous length of service including the service rendered
in a Development Authority, Nagar Mahapalika, Nagarpalika or Improvement
Trust on similar posts. The appellants, it will bear repetition to state, although G
were promoted at one point of time on purely ad hoc basis to the posts of
Assistant Executive Engineer as the said posts even in their parent authority
were not of similar type, the same would not be relevant for the purpose of
determining the inter se seniority. If the rule of continuous service in same
and similar posts is to be resorted to, the date of initial appointment would
be a relevant criteria therefor. [See M Ramachandran v. Govind Ballabh and H
596 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A Ors., [1999) 8 SCC 592, K. Anjaiah and Ors. v. K. Chandraiha and Ors., [1998)
3 sec 218, Vinod Kumar Sharma V. State of U.P. and Anr., [200 l) 4 sec
675
and S.N. Dhingra and Ors. v. Union of India and Ors., [2001) 3 SCC 125.
In a recent decision in Kaushal Kishore Singh v. Dy. Director of
Education and Ors., (2002) AIR SCW 19, this Court held:
B
"The claim of seniority of the employee is always determined in any
particular Grade or Cadre and it is not the law that seniority in one
Grade or Cadre would be dependent on the seniority in other Grade
or Cadre."
C As the post of Assistant Executive Engineer was not a cadre Post, the
appellants cannot be said to have been working on a similar post for the
pur;iose of Rule 7 of the I 985 Rules.
Yet again in Md /srai/s and Ors. v. State of West Bengal and Ors., (2002)
AIR SCW 68, it was held:
D
"The corollary of the above Rule is, where the initial appointment is
only adhoc and not according to the rules and made as a stop-gap
arrangement, the officiation in such post cannot be taken into account
for considering the seniority.
E CONCLUSION:
In view of our findings aforementioned, we have no other alternative
but to uphold the order of the High Court, albeit for different reasons.
Accordingly, the Appeals are dismissed. The parties shall pay and bear their
own costs in these appeals.
F
In view of aforementioned, it is not necessary to pass any separate
order on the Interlocutory Applications.
N.J. Appeals dismissed.
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