9911796707
TMI Blog2003 (7) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers and employees as may be necessary 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 efforts have not been able to cope with these problems to the desired extent. In order to bring about improvement in this situation, the State 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. By reason of the provisions of the said Act, thus, other statutes governing the field relating to town planning and urban development remained suspended in terms of Sub-section (1) of Section 59 of the Act. Sub-Section (3) of Section 59 reads as under: On and from the constitution of the Development Authority in relation to a development are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineer (C) on 9.11.1978, whereas the Appellant No. 2 joined his post on 12.07.1979. Respondent No. 1, however, was admittedly appointed on or about 12.10.1976. The State Government thereafter created Development Authorities Centralised Service with effect from 22.10.1984 by inserting 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 appointment, as the case may be. The appellants were absorbed in the posts of Assistant Engineer. It is not in dispute that Respondent No. 1 was provisionally promoted to the Post of Assistant Engineer on purely reference basis by an Office Memorandum dated 3rd May, 1986. Appellants were said to have been 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. 1 were finally absorbed in the Centralised Service on the post of Assistant Engineers by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;; 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 Development Act, 1973 read with Section 5-A thereof. RELEVANT STATUTORY PROVISIONS: The relevant rules of U.P. Development Authorities Centralised Service Rules, 1985 which are material for the purpose of this case read as under: PART II CADRE AND STRENGTH 3. (1) There shall be the following categories of the posts in the cadre of the service and they shall consist of the posts mentioned against them Service Posts included in the service Scales of Pay in Rs I to III Omitted IV. Town Planning Architectural 1. Mukhya Nagar Niyojak 1780-2300 2. Nagar Niyojak 1250-2050 3. Sahayak Nagar Niyojak 850-1720 4. Vastuvid/Statistical Assistant 570-1100 5 to 10 Omitted V to VIII Omitted Note. - The undernoted 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. Post Post(s) included (1) to (8) Omitted (9) Mukhya Nagar Niyojak Vastuvid Niyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government regulating the 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 cadre. PRIMAL QUESTION: The dispute between the parties before the High Court as stated in the 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 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 beside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Service. The High Court relying on or on the basis of a Division Bench decision of this Court in Mohan Karan's case (supra) held that the provisions of the Rules 1991 shall apply for the purpose of determination of inter se seniority. Therein it was held: 14. We have already extracted Rule 6 of these Rules, which relates 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, whereas Rule 7 of the Centralised Services Rules has the overriding effect against Rule 28 of those Rules only. Further, the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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