Impleadment Of Few Affected Employees Sufficient In Service Matters; Non-Joining Of All Parties Not Fatal: Supreme Court

The Supreme Court has observed that in matters relating to service jurisprudence it is not essential to implead each and everyone who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected.

The bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna in the present matter was considering civil appeals against the Allahabad High Court's order dated December 4, 2019.

The High Court while allowing the appeal against the order of Single Judge had observed that there was extraordinary delay on the part of the writ petitioners in approaching the Court in as much as the seniority list of 2006 which had formed the basis of the 2009 seniority list, was not challenged within a reasonable time.

The Single Judge had set aside the final seniority list and had directed the appointing authority for preparation of fresh seniority list in accordance with Uttar Pradesh Government Servants Seniority Rules, 1991, be it Rule 5 or Rule 8 thereof.

While allowing the appeals, the Supreme Court noted in the instant case Ajay Kumar Shukla And Others V. Arvind Rai And Others :

"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."

Factual Matrix

The Chief Engineer, Department of Minor Irrigation send a requisition dated June 18, 1998 to the Uttar Pradesh Public Service Commission ("Commission") requesting for recruiting 206 posts of Junior Engineers in the Department of Minor Irrigation which were divided between agriculture, mechanical and civil streams in the ratio of 50:30:20 respectively.

The Commission issued an Advertisement No 3 of 1998-1999 for inviting applications for the post of Junior Engineers and after finalizing the results, the Commission forwarded three separate select lists to the Minor Irrigation Department of the State Government. Based upon the three select lists forwarded by the Commission the appointment letter was issued on October 8, 2001, which clearly indicated that the issue regarding seniority would be decided later on.

A tentative seniority list was published in 2006 vide office order dated March 17, 2006 with respect to all the Junior Engineers appointed after January 1, 1989 and by office order dated September 5, 2006 published a final seniority list. In 2009, the Department took a fresh exercise of preparing the seniority list as the Rules relating to Junior Engineers were framed by the Minor Irrigation Department for the first time.

Accordingly pursuant to publication of a provisional seniority list objections were invited by order dated December 29,2009 and thus on March 5, 2010 a final seniority list was published.

Paragraph 11 of the office order dated March 5, 2010 had referred that the Commission had sent three separate lists i.e. of Agricultural stream on September 28, 1999, Mechanical stream on January 6, 2000 and Civil stream on November 7, 2000 and the candidates of the three lists were placed by the Department in the same sequence as they were received with their inter se seniority in their respective lists.

Since the appellants (belonging to mechanical and civil stream) came to know of the mode of preparation of the seniority list after the publication of the final list on March 3, 2010 they approached the High Court after no heed was paid to their representations for correcting the seniority list, by considering the inter se merit of all the three streams i.e. Agricultural, Mechanical and Civil on the basis of the marks obtained in their examinations . They argued that they were under the bona fide belief that the department had prepared a seniority list inter se between all three streams as per the selection and result conveyed by the Commission.

Although the Single Judge of the Allahabad High Court on May 14, 2019 allowed the writ but on preference of an intra court appeal by the respondents (Agriculture Stream), the Division Bench of the High Court on December 4, 2019 dismissed the same.

The Division Bench while dismissing the writ had observed that there was extraordinary delay on the part of the writ petitioners in approaching the Court in as much as the seniority list of 2006 which had formed the basis of the 2009 seniority list, was not challenged within a reasonable time.

The High Court had further observed that all the affected Junior Engineers having not been impleaded would be fatal on the principle of non-joinder of necessary parties. It was also opined that the appellants having participated in selection/appointment process, later on, could not challenge the process as such action would be hit by doctrine of estoppel and acquiescence.

The appellants thus approached the Top Court.

Submissions Of Counsels

Senior Advocate Siddarth Dave and Advocate Preetika Dwivedi appearing for the Appellants submitted that there was no delay on appellant's part in approaching the Court as they learnt for the first time in 2010 when the final seniority list was published on March 5, 2010 that there were three separate select lists forwarded by the Commission. It was also their contention that based upon the date of the receipt of such a select list, the seniority list had been prepared, which was contrary to the statutory rules.

It was also their contention that as the challenge was to the decision-making process in making the seniority list contrary to the Uttar Pradesh Government Servants Seniority Rules, 1991 and Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules, 2009 ("Rules 2009") it was not necessary to implead all the affected Engineers. Appellant's counsel further contended that the earlier seniority list would lose significance since a fresh seniority list had to be prepared as Rules 2009 had come into force that required drawing up of a fresh seniority list.

Senior Advocate Gopal Sankaranarayanan and Advocate Rohit Sthalekar appearing for the respondents submitted that appellants had approached the Court with extraordinary delay and therefore, their claim was not entitled to be entertained and the Division Bench of the High Court rightly upheld the said submission.

Supreme Court's Analysis

The bench in the judgment authored by Justice Vikram Nath observed that 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. The court further opined that 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.

On the aspect of delay in approaching the court and in particular challenge to a seniority list, the bench observed 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. The Appointing Authority would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list. The same would be arbitrary, de hors the rules and in conflict with Articles 14 and 16 of the Constitution. The only exception to the above would be where there is unreasonable delay which is unexplained."

Appointing Authority Ought To Have Prepared A Combined Merit List Based Upon The Performance Or The Proficiency-Based On The Marks Received In The Selection Test As Prepared By The Commission

Further the bench also observed 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. In this regard the Court further added that 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.

"Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right," the Court further said.

"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 added.

Case Title: Ajay Kumar Shukla And Others V. Arvind Rai And Others| Civil Appeal No(s). 5966 Of 2021

Coram: Justices DY Chandrachud, Vikram Nath and BV Nagarathna

Citation : LL 2021 SC 718

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