Hon. Jayashree Tiwari, J.
1. We have heard Sri C.B. Yadav, senior counsel assisted by Sri Aditya Kumar Singh for the petitioners; Sri Pankaj Saxena, for respondent Nos. 1 and 2; Sri Ashok Khare, senior counsel assisted by Sri S.K. Tyagi for respondent Nos. 3, 4, 6 and 7 and Sri P.S. Baghel, for U.P. Public Service Commission.
2. The petitioners are aggrieved by the decision on their representation with regard to determination of their seniority on the post of Engineers in Zila Panchayat.
3. By the impugned order, the Special Secretary, Government of U.P. has, while deciding the objections of the petitioner to the tentative seniority list, found that since three reserved posts of OBC category were filled up by selection of the petitioner in pursuance to advertisement No.6/1997-98 dated 4.11.1997, in respect of item No. 7 of the advertisement as a special class of vacancies (for which a separate select list was declared on 27.7.1998), the Explanation to Section 5 of the U.P. Government Servant Seniority Rules, 1991 will be attracted, and that recruitment of these three reserved category candidates will be treated to be an emergency recruitment. The petitioners as the three reserved category candidates selected vide select list dated 27.8.1998 and appointed on 3.5.1999, 12.3.1999 and 3.5.1999 respectively will thus be treated to be juniors to the 19 selected candidates by the same advertisement at item No. 5, for which a separate select list was published on 28.8.1998 i.e. one day after the select list dated 27.8.1998 in respect of three reserved category candidates.
4. Sri C.B. Yadav, submits that there were 68 sanctioned posts of Engineers in the Zila Panchayat. Out of these 68 posts, 50 % posts i.e. 34 posts were to be filled up by direct recruitment. The 17 posts out of these 34 posts, were reserved for general category candidates, 10 for OBC category and 7 for Scheduled Caste category candidates. As against 34 posts, under direct recruitment quota, 12 posts were filled up by 7 general category candidates and 5 Scheduled Caste category candidates, whereas the admissible reservation for general category was 6, OBC 3 and SC 3. In this manner 22 posts were to be filled up by direct recruitment. It was found that out of 22 posts, 11 posts were to be filled up by general category candidates, 7 OBC and 4 SC category candidates. The State Government therefore by its letter dated 25.6.1997 requisitioned the U.P. Public Service Commission to fill up these posts in the following manner: (i) three out of 22 posts were to be filled up as special recruitment for OBC, and (ii) remaining 19 posts (10 General, 7 OBC and 2 SC) were to be filled up with normal reservation.
5. The Commission vide advertisement No.6/1997-98 dated 4.11.1997, advertised 19 posts with normal reservation at Item No. 6. Three posts under OBC category were placed at Item No. 7, as special recruitment. The interviews for three reserved posts under special recruitment were held on 8.7.1998, whereas interview for the 19 posts were held on 9th July - 22nd July, 1998. The select list for three reserved candidates was published on 27.8.1998, and the select list for 19 candidates was published a later, on 28.8.1998.
6. It is admitted that U.P. Government Servants Seniority Rules 1991 is applicable, to determine seniority amongst the contesting parties, which provides in Rules 5 to 7 as follows:-
PART - II DETERMINATION OF SENIORITY
5.Seniority where appointments by Direct Recruitment only. - Where according to the service rules appointments are to be made only by the Direct Recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :
Provided that a candidate recruited directly may lost his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the Appointing Authority as to the validity of reasons, shall be final:
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation. - Where in the same year separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection.
7. Sri C.B. Yadav submits that explanation to Rule 5 is not attracted in the present case, for treating the petitioners' selection as emergency recruitment for the purpose of determining seniority. The word 'emergency' has to be read in the context, in which it has been used in the explanation. If in the same year separate selections are made by the same recruitment by one advertisement in which certain reserved posts are to be filled by way of special recruitment, such recruitment cannot be called as emergency recruitment, and should not be treated to be the later recruitment.
8. In this case, we are faced with a situation where for the reasons explained by the State Government, three posts were separated, but were included in the same advertisement. The Commission advertised all the 22 posts by the same advertisement dated 28.11.1997, for which interviews were held on different dates, but in continuation. The select lists were published separately, with a gap of only one day.
9. Sri Ashok Khare appearing for the private respondents has raised a preliminary objection that dates of substantive appointment of all the 22 candidates are different. The petitioners have impleaded only two candidates amongst 19 selected candidates, in representative capacity and two other candidates joined on their own. He submits that in the absence all the 19 selected candidates, the writ petition is not maintainable.
10. Rule 5 of the Uttar Pradesh Government Servants Seniority Rules 1991 provides for seniority inter se of the persons appointed in respect of any one selection, as it is shown merit list prepared by the Commission or the Committee as the case may be. The first proviso is not attracted. The second proviso provides that persons appointed on the result of subsequent selection shall be junior to the persons appointed on the result of a previous selection. The Explanation to second proviso provides that if in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection.
11. The vacancies were worked out, and requisition was sent by the same Government Order; the posts were advertised by the same advertisement; the interviews were held on consecutive days, and thus the difference between dates on which merit list was prepared, will not separate the selection to be considered as to which was earlier than the other.
12. In the present case, it is not denied that all the 22 vacancies of which three posts were required to be filled up to complete the quota of reserved category belong to the same cadre. All the 22 persons were selected by the same Commission and were subjected to interviews by the same selection committee. So far as the interpretation of the term 'emergency recruitment', in the explanation to Section 5 is concerned, we may observe that the word 'emergency' is used in the rule differently than the expression 'regular recruitment'. The word 'emergency' means circumstances which call for immediate action or remedy; pressing necessity, exigency, sudden or unexpected happening, an unforeseen occurrence or condition (Concise Law Dictionary P. Ramanatha Aiyar, Third Edition, Reprint 2009, P. 384). Emergency recruitment is thus a recruitment in unforeseen circumstances, in which appointments should be made in the same year. In the present case, no such emergency can be culled out from the Government Order dated 25.6.1997 by which all the 22 posts were requisitioned and filled up. The three amongst 22 posts were separated, only to fill up the quota for reserved category.
13. A purposive and reasonable interpretation of Rule 5 for the purpose of determination of seniority in the given situation has to be made by the State Government. There was nothing special or unusual, to deny benefit of Rule 5 of the Rules of 1991, to the petitioners.
14. When a large number of persons were recruited, it is not necessary to implead all of them to seek the reliefs, with regard to seniority. In the present case, four, out of 19 selected candidates who were likely to be affected by the judgement are parties to the writ petition. They have entered appearance and have defended their case. The State Government has also filed a counter affidavit defending them. In the circumstances, the non impleadment of 15 persons in view of the order passed by us, will not prejudice their case. We may however, make it open that if they have any special facts to represent other than the question of law, decided by us, as above, they may make representation to the State Government for which a notice will be issued to them by the State Government before publishing the final seniority list.
15. The writ petition is allowed. The seniority list dated 6.7.2010 (Annexure-7 to the writ petition) is set aside. The State Government is directed to decide the seniority matter all over again, treating the selections of the year 1988 (both general and special), to be one selection. The State Government will draw a common seniority list in accordance with the number of marks scored by all the 22 selected candidates.
16. The required exercise for determining the seniority will be carried out, within three months, from the date of service of the order.
Dt. 15.11.2010 nethra