2003 (7) TMI 707 - SC - Indian Laws

Seeking promotion to the Posts of Assistant Executive Engineer - Determination of inter se seniority - ad hoc or temporary promotion - Applicability of general rules versus special rules for determining seniority - HELD THAT - 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 It is stated that petitioner No. 1 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 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 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 03.05.1986 and 13.01.1987 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. 1 and other employees similarly situated, their inter se seniority would be governed by the statutory rules operating in the field. The case of the appellants vis- -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 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. In a recent decision in Kaushal Kishore Singh Vs. Dy. Director of Education and others 2000 (11) TMI 1266 - SUPREME COURT , this Court held 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. 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. Thus, we have no other alternative but to uphold the order of the High Court, albeit for different reasons. Accordingly, the Appeals are dismissed.

Summary

Issues Involved:
1. Dispute of inter se seniority between the appellants and the respondent.
2. Applicability of general rules versus special rules for determining seniority.
3. Validity of ad hoc promotions for determining seniority.

Summary:

1. Dispute of Inter Se Seniority:
The primary issue in this appeal is the dispute of inter se seniority between the appellants and Respondent No. 1, arising from a judgment dated 23.5.2002 by the High Court of Judicature at Allahabad, Lucknow Bench. The appellants and Respondent No. 1 were absorbed into the Development Authorities Centralised Service, and the seniority list issued on 12th April 1996 was challenged by Respondent No. 1.

2. Applicability of General Rules vs. Special Rules:
The High Court applied the Uttar Pradesh Government Servants Seniority Rules, 1991 (general rules) instead of the U.P. Development Authorities Centralised Service Rules, 1985 (special rules). The Supreme Court noted that rules made under the proviso to Article 309 of the Constitution are for a transitory period and must give way to special rules framed under a statute. Therefore, the special rules (1985 Rules) should apply over the general rules (1991 Rules) for determining seniority.

3. Validity of Ad Hoc Promotions:
The appellants were promoted on an ad hoc basis to the posts of Assistant Executive Engineer, which were not legally created or borne on the cadre. The Supreme Court held that ad hoc or temporary promotions on non-existent posts do not confer any right of seniority. Thus, the seniority must be determined based on continuous service on similar posts, as per Rule 7 of the 1985 Rules. The date of initial appointment is relevant for determining seniority, and the appellants' ad hoc promotions were not considered for seniority purposes.

Conclusion:
The Supreme Court upheld the High Court's order, affirming that the seniority should be determined based on continuous service on similar posts, as per the special rules (1985 Rules). The appeals were dismissed, and each party was to bear its own costs.