Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right: Supreme Court

Supreme Court: The 3-Judges Bench comprising of D.Y. Chandrachud, Vikram Nath* and B.V. Nagarathna, JJ., set aside the seniority list prepared by the Department of Minor Irrigation, U.P. on finding the list to be in contravention of statutory mandate. The Bench stated,

“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.”

The appellants, who were working as Junior Engineers in the Department of Minor Irrigation belonged to Mechanical and Civil Streams whereas Private Respondents were from the Agriculture Stream. The contention of the appellants was that the department had placed the candidates of the three lists, i.e. Mechanical, Civil and Agriculture in the same sequence as they were received with their inter se seniority in their respective lists. For example, if there were 30 candidates in the Agricultural stream, all those candidates were placed on top at serial nos. 1 to 30 in the same order as it was received, if 20 candidates were in the Mechanical list then they were placed en bloc in the same serial as received from the Commission from serial nos. 31 to 50 and so on in the same sequence as forwarded by the Commission.

Findings of the High Court

The Single Judge of the High Court of Allahabad, vide judgement and order dated 14-05-2019, allowed the writ petition, quashed the seniority lists and further issued a writ of mandamus directing the respondents to draw a fresh seniority list in accordance with Rule 5 of the Uttar Pradesh Government Servants Seniority Rules, 1991. However, in intra court appeal, the Division Bench had, by its impugned judgment set aside the judgment of the Single Judge and dismissed the writ petition. The Division Bench opined that the writ petitioners having not challenged the final seniority list dated 05-09-2006, principally accepted the same as such their claim would be barred by principle of acquiescence.

Analysis by the Court

Rule 5 of the U.P. Engineering Service (Minor Irrigation Department) Rules, 1991 provides for seniority where appointments are made only by direct recruitment, which states that inter se seniority of the persons appointed as a result of ONE SELECTION would be on the basis of the merit list prepared by the Commission or the Committee, as the case may be. Rule 8 stipulates that seniority inter se of persons appointed on the result of any one selection, i.e. through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee.

It was an admitted position that there was one selection for the three streams i.e. Agricultural, Mechanical and Civil. It was also an admitted fact that there was one cadre of Junior Engineers in the Minor Irrigation Department and therefore, there has to be one seniority list of Junior Engineers. Therefore, the Bench opined that the Appointing Authority had 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. Since, it was not the case either of the private respondents, State or the Commission that appointment letters had been issued separately when the select lists were received.

Validity of Seniority List

Noticeably, in March, 2006, when the tentative list was published, it did not mention about the three select lists nor was this fact mentioned when the final seniority list was published on 05-09-2006. Rather, it clearly mentioned that the seniority list had been prepared on the basis of merit, while in real sense the list had been prepared on the basis of receipt of the three separate select lists one after the other.

“As the Agricultural list was received first on 28.09.1999, all the selected candidates of agricultural stream were en bloc placed on the top, thereafter the Mechanical list was received on 06.01.2000, they were placed below the Agricultural stream and lastly, the Civil stream list was received on 07.11.2000, they were placed at the end.”

Prima facie, creating three separate lists for one selection was contrary to the provisions contained in Rules 5 and 8 of Rules 1991. Therefore, the Bench opined that once it is established that the seniority list was prepared in contravention to the statutory provisions laid down in Rules 1991, the seniority list could be interfered with.

Delay, whether justified?

Noticing that in final seniority list of 05-09-2006 it was nowhere mentioned that there were three separate lists of separate streams and that they were received on different dates, the Bench opined that it could not be said that the appellants were aware of the three separate select lists dispatched by the Commission on three different dates at the time of publication of final list.  It was only when the final seniority list was published on 05-03-2010 and in the order finalizing the list, it was mentioned by the department that there were three separate lists received on three separate dates and in that sequence the combined seniority was prepared. Thus, it was for the first-time that appellants came to know of the error on publication of the final seniority list on 05-03-2010.

Since the appellants had approached the High Court by way of writ petition in October 2012 which was within a period of two to two and half years and till such time they had been pursuing their representation after office order dated 05-03-2010, the Bench opined that the appellants could not be found at fault.

Right to be considered for Promotion

Considering that the next promotion of Junior Engineers in the higher grade was to the post of Assistant Engineer and that in the cadre of Assistant Engineer, there were no separate streams but only one cadre of Assistant Engineers, the Bench opined,

“The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and Civil streams, even though the overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of the Engineers of the Mechanical and Civil streams.”

The Bench held 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.

Verdict

In the backdrop of above, the Bench opined that the Division Bench fell in error in allowing the appeal and dismissing the writ petition and 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. Accordingly, the appeals were allowed. The impugned judgment of the Division Bench of the High Court was set aside and that of the Single Judge was restored.

[Ajay Kumar Shukla v. Arvind Rai, 2021 SCC OnLine SC 1195, decided on 08-12-2021]

Kamini Sharma, Editorial Assistance has put this report together 

Appearance by:

For Appellants: Siddarth Dave, Senior Counsel and Preetika Dwivedi, Counsel

For Private Respondents: Gopal Sankaranarayanan, Senior counsel and Rohit Sthalekar, Counsel

*Judgment by: Justice Vikram Nath