PRADEEP KUMAR GARG AND OTHERS Vs. STATE OF U.P. THROUGH ITS INDUSTRIAL DEVELOPMENT COMMISSIONER, MINISTRY OF INDUSTRY, LUCKNOW AND OTHERS

JUDGEMENT

(1.) AS identical questions of fact and law being involved in both the abovenoted writ petitions, we, therefore, propose to decide them together by common order. The petitioner of first writ petition have sought relief for quashing the seniority list dated 2.6.2006 drawn by respondent No. 2. A further writ in the nature of mandamus have been sought for directing the respondent No. 2 to implement the seniority list dated 16.3.2006 and issue promotion orders in pursuant to the said seniority list dated 16.3.2006 and to cancel the promotions of respondents No. 3 and 4 as Project Engineer and revert them to their respective posts.

(2.) RELIEF sought in the writ petition rests on the facts that the New Okhla Industrial Development Authority (respondent No. 2) (hereinafter referred to as the Authority) has been constituted in exercise of power under Section 3 of the U.P. Industrial Area Development Act, 1976, in brief the Act, 1976. The petitioners were appointed and confirmed as Junior Engineer on 26.12.79, 7.1.80, 6.3.80, 8.12.89 and 8.12.89 respectively with the respondent No. 2. The respondent No. 2 is having their administrative office at NOIDA District Gautam Budh Nagar (U.P.). In exercise of power under Section 19 of the Act, 1976 a statutory rule namely the New Okhla Industrial Development Authority Service Regulations, 1981 (hereinafter referred to as 'Service Regulation, 1981') has been framed which regulates the recruitment of employees and their other service conditions. According to the petitioners' case, the respondent No. 2 published a seniority list of Junior Engineers on 24.3.1982 and in the said list the petitioners have been placed at SI, Nos. 17, 19 and 22 respectively. The respondent No. 2 in the year 1989 promoted those Junior Engineers who were junior to the petitioners which was challenged by the petitioners by way of filing the claim petition bearing No. 386/F/III/91 before the Uttar Pradesh Public Services Tribunal No. III, Lucknow and vide order dated 29.6.1992 the seniority list uated 24.3.1982 has been confirmed. A true copy of the order dated 29.6.1992 passed by U.P. Public Services Tribunal, Lucknow is on record as Annexure-P-3 of the writ petition. The said order has not been modified and set aside by any Court till date and hence, the list mentioned herein above was the final seniority list. However, the respondent No. 2 has filed Writ Petition No. 37864/1992 before High Court, Allahabad against the order dated 29.6.1992 passed by the U.P. Public Services Tribunal, Lucknow and the same is still pending before the Hon'ble High Court at Allahabad and no stay has been granted in the said petition. The respondent No. 2 promoted the petitioners on the post of Assistant Project Engineer from Junior Engineer post with effect from 6.3.1993 pursuant to final seniority list. The respondent No. 2 thereafter, published a tentative seniority list of Assistant Project Engineers on 19.4.2004 and invited objections on the said tentative list and after considering the relevant regulation and objections filed against it, has confirmed vide final seniority list dated 16.3.2006, a copy of which is on record as Annexure-P-4. It is stated in para 11 of the writ petition that the petitioners have no grievances with regard to seniority list drawn by respondent No. 2 on 16.3.2006. In the said seniority list the petitioners have been shown in the category of Assistant Project Engineer (Civil) at Serial Nos. 8 and 10 respectively where as the respondent Nos. 3 and 4 have been shown at Serial Nos. 17 and 22 respectively.

(3.) THE petitioners being aggrieved by the aforesaid order have preferred Special Leave Petition before Hon'ble Apex Court, Hon'ble Apex Court has been pleased to dismiss the Special Leave Petition No. 9849/2006 vide order dated 7.7.2006 with the observation that since the seniority list has already been revised thus the petitioners would be at liberty to challenge the revised seniority list as well as consequential promotions. In pursuance of the aforesaid order of Hon'ble Apex Court the petitioners have submitted their representation to the respondent No. 2, however, the said representation has been kept aside and asked the petitioners to approach to this Court for their redressal as revised seniority list has been drawn by respondent No. 2 on 2.6.2006 in response to direction given by this Court. A copy of Minutes of Meeting dated 26.5.2006 is on record as Annexure-7 of the writ petition. It is further stated that without circulating the seniority list dated 2.6.2006 the respondent No. 2 promoted the respondent Nos. 3 and 4 as Project Engineer vide promotion order dated 9.6.2006. It has been stated in the writ petition that the respondent Nos. 3 and 4 have made an application before the respondent No. 2 for seeking their absorption with the respondent No. 2 against the post lying vacant which are falling under the category of direct recruitment. In response to the application dated 17.9.1994 of the respondent No. 3, the respondent No. 2 absorbed the respondent No. 3 vide order dated 28/30.3.1998. A copy of the application dated 17.9.1994 is on record as Annexure-8 of the writ petition. No condition was laid down at the time of absorption by the respondent No. 2 that their past service will be considered for the seniority. The respondent No. 4 made an application on 27.3.2003 before the respondent No. 2 that certain direct recruitment posts are lying vacant with the respondent No. 2 thus he may be absorbed against the same. A copy of the said application dated 27.3.2003 is on record as Annexure-9 of the writ petition. The application for absorption as well as order for absorption do not mention the computation of past services for the purpose of determination of seniority. The respondent No. 2 keeping in view their date of absorption as their date of appointment in the respondent No. 2, they have been placed at Serial Nos. 17 and 22 respectively in the seniority list drawn on 16.3.2006. Since, there was no condition imposed by the respondent No. 2 and respondent No. 4 at the time of seeking of absorption with the respondent No. 2 thus, they have waived their claim of the past services rendered in their parent department.