Right To Be Considered For Promotion And Not Right To Promotion Is A Fundamental Right: Supreme Court Reiterates

Factual Matrix: -

The appellants were positioned as Junior Engineers in the Department of Minor Irrigation, Uttar Pradesh. They had challenged a final seniority list dated 05.03.2010 before the High Court. Subsequently, the writ was amended, and a further challenge was laid to an earlier seniority list. The Single Judge allowed the writ and quashed the seniority list issuing a mandamus to the official respondents to draw a fresh seniority list. An intra court appeal was filed against the judgement of the Single Judge, which resulted in the same being quashed and the writ being dismissed, by the Division Bench.

The Division Bench, notably, had dismissed the writ, inter alia, on account of extraordinary delay in approaching the Court as, according to it, the seniority list was not challenged within a reasonable time. Hence, appeals were filed before the Supreme Court.

Reasoning and decision of the Supreme Court:-

The Court considered the relevant statutory rules, i.e., Uttar Pradesh Government Servants Seniority Rules, 1991 [in short "1991 Rules"]. The Court noted that a plain reading of the provisions of Rule 5 of the 1991 Rules would show that it stipulates that inter-se seniority of persons appointed, as a result of one selection, would be based on merit list prepared by the Uttar Pradesh Public Service Commission/Committee.

The Court noted that it was an admitted position that there was one selection for all the three streams, viz., Agricultural, Mechanical and Civil. Furthermore, it was also an admitted position that there is one cadre of junior engineers in Minor Irrigation Department, and hence, there had to be one seniority list. The Court held that the appointing authority had committed an error in the way the list was prepared. The Court, on this score, observed as follows:-

"The Appointing Authority, in fact, 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 private respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the 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. 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 private-respondents."

The Court, then, proceeded to discuss the law concerning the delay in approaching the Court, in particular, when the challenge is directed to a seniority list. The Court considered and dealt with various judgements, relied upon by the Single Judge as also by the Division Bench. The issues for consideration were, thus, culled out as follows.

"In view of the above legal proposition, we now examine the facts of the present case, firstly, as to whether there was delay of more than three to four years and secondly, if there was delay of more than three to four years, whether the same has been satisfactorily explained."

The Court concluded that once it was established that the seniority list was prepared in contravention with the statutory provision in vogue as per the 1991 Rules, the seniority list, so prepared, could be interfered with as the appointing authority was bound by the said Rules and the violation thereto would vitiate the list being in conflict with Article 14 and 16. The Court noted that the only exception to the same would be unreasonable delay, albeit, when it is not explained.

The Court noted that the respondents were not able to show any material that would indicate, clearly, that the appellants had knowledge that three separate lists had been issued and the seniority list was prepared on that basis. The Court observed that the Division Bench had committed an error in holding that the claim lodged by appellants suffered from delay and laches.

The Court noted that it has, time and again, emphasized that the right to be considered for promotion is a fundamental right in various pronouncements such as Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others and Ajit Singh vs. State of Punjab.

On this score, the Court observed as follows: -

"If the seniority list is allowed to be sustained then the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go."

The Court considered other grounds taken before the High Court such as they had not impleaded all affected Junior Engineers. The Court, once again, considered all judgements relied upon by the Division Bench to support this proposition. The court, then, sought to place reliance on Mukul Kumar Tyagi and Ors. vs. The State of Uttar Pradesh and Ors., and held that when there is a long list of candidates against whom the case is proceeded, it becomes unnecessary and irrelevant to implead each and every candidate. The Court held as follows.

"In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal."

The Court noted that the Division Bench had dealt with an issue that was "alien to the adjudication of the present appeals". The Division Bench had made a reference to an issue where a party takes calculated changes of participating in the appointment process and later turns around being unsuccessful – the same would get hit by the doctrine of estopped. According to the Apex Court, said the issue did not arise in the instant case. The Apex Court noted that the Division Bench did not consider the authorities cited by the Single Judge even though they were relevant and correctly applied.

Having regard to all the reasons, the Apex Court held that Division Bench fell in error in dismissing the writs and Single Judge was right in setting aside the seniority list while directing to prepare a fresh seniority list in accordance with Rule 5 or 8 of the 1991 Rules.

The appeals were, accordingly, allowed.

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