Court No. - 39
Case :- SPECIAL APPEAL No. - 171 of 2018 Appellant :- Ranveer Singh Srinet And Another Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Krishnaji Khare Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
( Delivered by Hon'ble Jayant Banerji, J) By means of this Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, the petitioners-appellants have challenged the judgment and order dated 11 January 2018, passed in Writ-A No.57976 of 2008 (Ranveer Singh Shrinet & and another Vs. State of U.P and others), whereby, the writ petition has been dismissed.
It has been stated in the writ petition that the petitioner-appellants, who were appointed as Cane Supervisors in the year 1999 and 2000 have challenged the Government Orders dated 4 June 1988 and 30 March 1994, by means of which, the post of Ganna Gram Sewak and Cane Supervisor have been merged. The contention of the petitioner-appellants was that the Ganna Gram Sewaks were governed by the Cane Development Department (Class 4) Service Rules, 19721 which were formulated by the State Government in exercise of power conferred under Article 309 of the Constitution of India. Further, the conditions of service of Cane Supervisor were framed under the Uttar Pradesh Ganna Paryaveshak (Group III) Service Rules, 19782. It was the contention that the aforesaid service rules framed under the proviso to Article 309 of the Constitution were sought to be modified by way of the aforesaid Government Orders dated 4 June 1988 and 30 March 1994 which were impermissible.
In view of the aforesaid, the writ petition was filed by the petitioner-
1 Rules of 1972
2 Rules of 1978 appellants with the following prayers:
“(i) Issue a writ, order or direction in the nature of certioari and thereby quash the G.O. Dated 4.6.1988 (Annexure no.4) as replaced by G.O dated 30th March, 1994 (annexure no.6) providing for merger, declaring the same as null and void, AND
(ii) Issue a writ, order or direction in the nature of mandamus and thereby command the respondents to take appropriate steps declaring all such Cane Supervisors , who came to be so on account of merger, as Ganna Gram Sewak since 4.6.1988 and accordingly benefits of length of service be provided to them as per Ganna Vikas Kendra Class 4th Services Rules, 1972, OR
(iii) Issue a writ, order or direction in the nature of mandamus and thereby command the respondents to prepare the separate seniority list of promoted Cane Supervisors and directly recruited Cane Supervisors and all further promotions on the post of Cane Development Inspector (cadre just above the Cane Supervisor) be made in accordance with rules providing for 1:1 pattern, treating such Cane Supervisors, who came to be so on account of merger, as promoted.
(iv) Issue any other writ, order or direction in the nature, as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case;
(v) Award the cost of writ petition to the petitioner.”
The State Government formulated the Ganna Vikas Vibhag (Chaturtha Shreni) Seva ( Pratham Sanshodhan) Niyamavali, 2012 [The Cane Development Department (Class IV) Service (First Amendment) Rules, 2012] on 19 November 2012 under the proviso to Article 309 of the Constitution. Along with that, another amendment in the rule being U.P. Ganna Parvavekshak (Group III) Service (First Amendment) Rules, 2012 were made on 19 November 2012 in exercise of power conferred by the proviso to Article 309 of the Constitution (hereinafter the two amendment Rules of 2012 are collectively referred to as the Rules of 2012). An important feature in these Rules of 2012 was that they were made effective from 4 June 1988 retrospectively. These Rules of 2012 were brought on record of the writ petition by a personal affidavit of the Principal Secretary, Sugar Industry and Cane Development Department of Uttar Pradesh. Subsequently by means of an amendment application, the following two prayers were added to the writ petition:
“VI. To issue a writ, order or direction in the nature of mandamus directing the respondents to give effect and implement Ganna Vikas Vibhag (Chaturtha Shreni) Seva (Pratham Sanshodhan) Niyamavali, 2012 and the Uttar Pradesh Ganna Paryavekshak (Group-III) Service( First Amendment) Rules, 2012 prospectively, (VII) to issue a writ, order or direction in the nature of mandamus not to enforce the aforesaid Rules with retrospective effect as it infringes the right of the Cane Supervisors like petitioners in arbitrary and discriminatory manner.”
It would be pertinent to mention here that the prayers as added by means of the amendment application moved on behalf of the petitioners, clearly evidenced that the petitioners-appellants did not challenge the amendment in the aforesaid Rules of 1972 and 1978. In other words, the merger of the Ganna Gram Sewak with the post of Cane Supervisor as envisaged in the amended Rules of 2012 was not challenged by the petitioners-appellants. The only aspect of challenge to the amended Rules 2012 was their retrospective operation that had been specifically provided for in the amendment rules themselves.
The contentions on behalf of the petitioner-appellants before the learned Judge were that: (i) the post of Ganna Gram Sewak and the Cane Supervisor were two separate posts and regulated by different service Regulations and without amending the relevant rules, the decision taken by the State Government vide aforesaid Government Orders dated 4 June 1988 and 30 March 1994 could not have been done, (ii) the aforesaid Rules of 1972 and 1978 could not have been amended retrospectively and, therefore, the benefit of merger granted to the Ganna Gram Sewaks pursuant to the government order under challenge , as well as its rectification by amending the Rules retrospectively is wholly without jurisdiction and arbitrary and (iii) no relief can be granted to the Ganna Gram Sewaks for being merged on the post of Cane Supervisors as that plea had already been rejected by the Hon'ble Supreme Court.
With regard to the proposition of law being put forth on behalf of the petitioners-appellants that the service rules framed under proviso to Article 309 of the Constitution of India cannot be altered by way of a Government Order and, statutory service regulations cannot be given retrospective application unless the provision itself specifically permits so, the learned Judge accepted these contentions as they are well settled. However, notwithstanding the legal position, the Court declined to grant relief as sought for in the writ petition.
The learned Judge went on to observe as follows:
“First and foremost, it would be relevant to notice that the government orders dated 4.6.1988 and 30.3.1994, which provided for merger of two posts has been given effect to almost 30 years back. Not only that, its benefit was given effect to for all Ganna Gram Sewaks, who have been treated as Cane Supervisors eversince and have been granted further benefits also. Many of such persons must have retired by now. None of those affected persons has been impleaded as a party in the writ petition.
It is settled that benefits granted to a set of employees for substantially long ought not to be disturbed without affording them an opportunity. This writ petition has remained for the last 10 years and at this stage, it would not be appropriate to permit the counsel for the petitioners to move an application for impleading the affected persons. The decision of the Apex Court in Prabodh Verma vs. State of U.P. and other reported in (1984) SCC 2 931 is specific in that regard. Even otherwise, it would be relevant to observe that the benefit of the government orders had been given effect to at the time when the petitioners were not even appointed on the post of Cane Supervisors. Pursuant to the government orders dated 4.6.1988 and 30.3.1994 all Ganna Gram Sewaks were merged with Cane Supervisors, and all benefits available to Cane Supervisors were extended to them. Such persons were already working as Cane Supervisors at the time when petitioners joined service in 1999 and 2000. No challenge was laid to government orders of 1988 and 1994 at that stage. By way of amendment made in the rules, the State Government has merely tried to correct the anomaly inasmuch rules have been made consistent with the government orders of 1988 and 1994. The government orders of 1988 and 1994 as well as amendment made in the service rules would affect those who were in service in 1988 and not to the writ petitioners, who came in service after merger of the posts. It would also be relevant to note that while rejecting plea of merger of the two posts, Hon'ble Supreme Court has clearly left it open for the State Government to consider issue of merger. Observation of the Apex Court in Civil Appeal No.4116 of 1985, State of U.P. vs. Vyas Mani Mishra, dated 14.8.1987 is reproduced:-
"This judgment, however, will not prevent the State of U.P. from considering the merger of these two posts and the consequent equalization of pay."
It is also settled that long standing seniority in service ought not to be disturbed with after a long lapse of time.
In the peculiar facts and circumstances, since the merger of the post of Ganna Gram Sewak with Cane Supervisor has been given affect to 1988, and the affected persons are not party before this Court, I am not inclined to exercise jurisdiction under Article 226 of the Constitution of India in favour of the petitioners, notwithstanding the proposition of law.
Writ petition is accordingly dismissed.”
The contentions before this Court by the learned counsel for the petitioner-appellants are that the learned Judge ought to have directed the impleadment of persons who had got benefit of the aforesaid government orders of 4 June 1988 and 30 March 1994, and, that the amendment to the rules were made in the year 2012 and since they conferred substantive right, they could not have been given retrospective operation.
In the case of Prabodh Verma Vs. State of U.P. and others 3, the Supreme Court had observed that those who were vitally concerned and
3 1984 (4) SC 251 were not made parties not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents, the High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents. Thus, in view of non-impleadment of employees who had been granted benefit for substantially long, the learned Judge justifiably declined to grant relief on this ground.
It was observed by the learned Judge, that none of the affected persons were impleaded in the writ petitions. The writ petitions had been pending for the last 10 years and at the stage of final disposal of the case, it would not be appropriate to permit the petitioners to implead the affected persons. The learned Judge has further observed that even otherwise, the benefit of Government Orders dated 4 June 1988 and 30 March 1994 had been given effect to at the time when the petitioners were not appointed on the post of Cane Supervisors. The Ganna Gram Sewaks whose posts were merged with the Cane Supervisors pursuant to the Government Orders of 1988 and 1994 were already working as Cane Supervisors at the time when the petitioners joined service in 1999 and 2000. The Government Order of 1988 and 1994 were not challenged by the petitioners at that stage. By means of an amendment in 2012 made in the Rules of 1972 and 1978, the State Government has merely tried to correct the anomaly inasmuch as rules have been made consistent with the Government Orders of 1988 and 1994. The Government Orders of 1988 and 1994 as well as amendment made in the service rules would affect those who were in service in 1988 and not the writ petitioners, who came in service after merger of the posts. The learned Judge has also observed that the long standing seniority in service ought not to be disturbed with after a long lapse of time. In this regard, we may refer to the observation of the Supreme Court in the case of K.R. Mudgal and others Vs. R.P. Singh and others, 1986 (4) SCC which is as under:-
“7. ….......................The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the government servants created by the writ petitions filed after several years as in this case. It is essential that anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the government servants there would also be administrative complications and difficulties ”.
Thus, the learned Judge was justified in declining to grant relief to the petitioner-appellants on this ground also.
Learned counsel for the petitioner-appellants has relied upon the judgements rendered by the Supreme Court in the case of Secretary, Minor Irrigation Department and R.E.S Vs. Narendra Kumar Tripathi 4, Navjyoti Coo-Group Housing Society etc. Vs. Union of India and others 5 and The General Manager, South Central Railway and another Vs. A.V.R. Siddhanti and others 6.
The judgment in the matter of Secretary, Minor Irrigation Department and R.E.S , directs the State to redetermine the seniority after hearing the affected parties by making it clear that benefit of re- determination of seniority will not be disturbed holding of posts by any incumbent and except for benefit in pension other benefits to which the petitioner may be found entitled will be given only on notional basis.
The facts of that case were entirely different from the case before us, as such no benefit can be derived by the petitioners-appellants.
The matter of Navjyoti Coo- Group Housing Society related to allotment of Group Housing Society which were likely to be affected if the new guideline was struck down and the Supreme Court observed that no real prejudice was caused to the Society which were likely to be benefitted by
4 2015 (3) AWC 2568(SC)
5 AIR 1993 SC 155
6 AIR 1974 SC 1755 the new criterion. However, this judgment of the Supreme Court pertains to the allotment of land to the Group Housing Society, therefore, would not apply in a service matter as is the case of the petitioner-appellants.
The last judgment relied upon by the learned counsel for the petitioner-appellants is in the matter of The General Manager, South Central Railway and the observation of the Supreme Court in this judgment, the benefit of which is being sought by the learned counsel for the petitioner-appellants is as follows:
“20..................In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joineder could not be fatal to the writ petition.”
This case is also of no benefit to the petitioner-appellants as the Ganna Gram Sewaks who became Cane Supervisors by virtue of the Government Orders would be vitally concerned and would be necessary parties.
We, therefore, see no good reason to interfere in the judgment of the learned Judge and this Special Appeal is dismissed.
Order Date :- 27.2.2018 sfa/ ( Dilip Gupta, J) ( Jayant Banerji, J)