Once it is established that seniority list was prepared in contravention to UP Government Servants Seniority Rules, 1991, then seniority list calls for interference: SC

Read Judgment: Ajay Kumar Shukla & Others vs. Arvind Rai & Others

Pankaj Bajpai

New Delhi, December 10, 2021: The Supreme Court has held that once it is established that the seniority list was prepared in contravention to the statutory provisions laid down in Uttar Pradesh Government Servants Seniority Rules, 1991, the seniority list could be interfered with. 

The Appointing Authority would be therefore bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list, as the same would be arbitrary, de hors the rules and in conflict with Articles 14 and 16 of the Constitution, added the Court.  

A Larger Bench of Justice Dr. D.Y Chandrachud, Justice Vikram Nath and Justice B.V Nagarathna therefore observed that the appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission. 

Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit, added the Larger Bench. 

The background of the case was that the Chief Engineer, Department of Minor Irrigation send a requisition dated June 18, 1998 to the Uttar Pradesh Public Service Commission (UPPSC) requesting for recruitment on 206 posts of Junior Engineers in the Department of Minor Irrigation which were divided between agriculture, mechanical and civil streams in the ratio of 50:30:20 respectively. Later, the UPPSC issued an Advertisement No. 3 of 1998-1999 for inviting applications for the post of Junior Engineers and after finalizing the results, the UPPSC forwarded three separate select lists. Based on such recommendation, a tentative seniority list was published in 2006 with respect to all Junior Engineers appointed after Jan 01, 1989. 

In 2009, the Department took a fresh exercise of preparing the seniority list. Since the appellants belonging to mechanical and civil stream came to know of the mode of preparation of the seniority list after the publication of the final list on March 3, 2010 they approached the High Court after no heed was paid to their representations for correcting the seniority list, by considering the inter se merit of all the three streams. 

The High Court observed that there was extraordinary delay on the part of writ petitioners in approaching the Court in as much as the seniority list of 2006 which had formed the basis of the 2009 seniority list, was not challenged within a reasonable time. The High Court further observed that the appellants having participated in selection/appointment process, later on, could not challenge the process as such action would be hit by doctrine of estoppel and acquiescence. Hence, present appeal. 

After considering the arguments, the Larger Bench noted that the Appointing Authority committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists. 

It is not the case either of the respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received, added the Bench. 

In fact, the Larger Bench found that appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000 and apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under 1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to the selection of the appellants and respondents. 

The appellants had no occasion to know about the three separate lists either at the time they were dispatched by the Commission or at any time thereafter as the appointment letters of all selected candidates of all the three streams were issued simultaneously under Office Order, added the Bench. 

“The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March, 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years”, observed the Larger Bench.

The Apex Court therefore concluded that the Single Judge was right in his view in setting aside the final seniority list and directing the appointing authority for preparation of fresh seniority list in accordance with Rules 1991, be it Rule 5 or Rule 8 thereof.