U.K. dhaon, J.
1. Heard Sri I.B.Singh, learned Counsel for the petitioner, Sri Asit Kumar Chaturvedi, leaned counsel for opposite parties 3 and 4. The learned Standing Counsel for opposite parties 1 and 2 and Sri R.K.Singh the learned Counsel for Sri Raghvendra Vikram Singh to whom right of hearing was granted
2. The petitioners being aggrieved by the order dated 13.03.2003 passed by the opposite parties No. 1 and 2 by which the seniority of the opposite parties No. 3 and 4 has been re-fixed in the Provincial Civil Services (Executive Branch) from Batch Year 1976 and 1977 respectively, have approached this Court. The petitioners have alleged that they joined Provincial Civil Services (Executive Branch) after the recommendation of the U.P. Public Service Commission and qualifying the test for appointment. The petitioners have alleged that Sri Sudhir Kumar, opposite party No. 3 was commissioned in the Army on 19.03.1977 as a Short Service Commission Officer and was released from defence services on 12.05.1982. The opposite party No. 3 passed the examination for appointment in the Provincial Civil Services in the year 1984 and joined the State Services on 07.07.1986. The opposite party No. 3 was confirmed on 07.07.1988 and was allotted the batch year 1985 for the purposes of seniority. The petitioners have further alleged that Sri Rajendra Singh-respondent No. 4 applied for Short Service Commission and was Commissioned as an officer of the Army on 13.03.1978 and he was discharged from Defence services on 05.07.1983. The opposite party No. 4 joined Class-II/Group B service of the State of U.P. on 01.11.1987 and was confirmed on 01.11.1989. The opposite party No. 4 was allotted the Batch Year 1986 for the purposes of seniority.
3. The petitioner No. 1 of Writ Petition No. 494 (S/B) of 2003 joined Class-II /Group B service of the State of U.P. as P.C.S. Officer. He was confirmed in the services on 03.09.1980 and was allotted the Batch Year 1977 for the purposes of seniority. The Petitioner No. 2 of Writ Petition No. 494 (S/B) of 2003 joined Class-II /Group B service of the State of U.P. as P.C.S. Officer on 16.07.1978 as a direct recruit and was confirmed on the said post on 01.04.1982. He was allotted the Batch Year 1977 for the seniority purposes.
4. The petitioner No. 1 of Writ Petition No. 504 (S/B) of 2003, joined the Provincial Civil Services (Executive Branch) on 21.07.1979 he was confirmed on 01.11.1985 and was awarded the Time Scale w.e.f. 22.07.1986. The petitioner No. 2-Shambhu Singh Yadav of Writ Petition No. 504 (S/B) of 2003 has joined the service on 06.04.1971 on the recommendation of the U.P. Public Service Commission he was confirmed on 06.04.1980 and was awarded Time Scale w.e.f. 21.07.1986.
5. The petitioner of Writ Petition No. 1083 (S/B) of 2004 joined Provincial Civil Services ( Executive Branch) on 22.05.1978; he was confirmed on 22.05.1980 and was awarded Time Scale w.e.f. 12.07.1986.
6. The petitioners have further alleged that the Gradation List of the officers in the services was published in the year 1998 modified up to 31.01.1998. The opposite party No. 3, Sri Sudhir Kumar was placed in the seniority list at Serial No. 563 and Sri Rajendra Singh-opposite party No. 4 was placed at Serial No. 607. The petitioner No. 1 of Writ Petition No. 494 (S/B) of 2003 was placed at Serial No. 250 of the seniority list and petitioner No. 2 of writ petition No. 494 (S/B) of 2003 was placed at Serial No. 262 of the seniority list. The petitioner No. 1 of writ petition No. 504 (S/B) of 2003 was placed at Serial No. 228 and the petitioner No. 2 of Writ Petition No. 504 of 2003 was placed at Serial No. 247. The petitioner of Writ Petition No. 1083 of 2004 was placed at Serial No. 248.
7. Sri I.B. Singh, learned Counsel for the petitioners submitted that the U.P. Non Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules 1980(hereinafter referred as 1980 Rules) specifically provides that a person selected for the appointment to a Non-Technical (Class II/Group-B) Services or post, against the vacancy reserved for Demobilised Officers, as a result of recruitment the process of which was concluded or commenced prior to 06.08.1978 in accordance with 1973 Rules, shall be eligible and considered for appointment against the vacancies reserved for Demobilised Officers under the said Rules and as the opposite parties No. 3 and 4 were appointed subsequent to 06.08.1978, they were not entitled for the benefit of 1980 Rules. He further submitted that the opposite parties 3 and 4 have joined the State Services only in the year 1986 and 1987 when the 1980 Rules ceased to have any force and as such they are not entitled for seniority from Batch Year 1976 and 1977. Learned Counsel for the petitioners has relied upon the decision of Hon'ble the Supreme Court in the case of State of U.P. and Anr. v. Dinkar Sinha reported in (2007) 10 SCC 548. He further submitted that before re-fixing the seniority of the opposite parties No. 3 and 4 from Serial No. 563 and 607 to 226 B and 266 B, no opportunity was afforded to the petitioners and as such the impugned order is in violation of the principle of natural justice. He further submitted that in a most arbitrary and illegal manner 1976 and 1977 batch has been awarded to the opposite parties No. 3 and 4, which is violative of Article 16 of the Constitution of India. He further submitted that by the letter dated 22.02.2003 the objections were invited within 15 days from the officers who were likely to be affected and without waiting for the objection the impugned order was passed in an arbitrary and illegal manner on 13.03.2003. He further submitted that no official letter was ever communicated to the petitioners to file their objection. Learned Counsel for the petitioners has relied upon the decision of Hon'ble the Supreme Court in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha reported in : (2007)3SCC184 .
8. Sri Asit Kumar Chaturvedi, learned Counsel for the opposite parties No. 3 and 4 submitted that there is no illegality in the impugned order by which due seniority has been given to opposite parties No. 3 and 4 in compliance of the judgment and order dated 24.05.1999 passed in Civil Misc. Writ Petition No. 5380 of 1999 and the judgment and order dated 31.08.1999 passed in Civil Misc. Writ Petition No. 37008 of 1999. He further submitted that the opposite parties No. 3 and 4 are fully covered under the provisions of U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980, which were amended from time to time. He further submitted that the opposite party No. 3 joined the Officers Training School, Madras on 19.05.1976 and was commissioned on 19.03.1977 and the opposite party No. 4 joined the Officers Training School, Madras on 16.05.1977 for which selection was initiated by the Union Public Service Commission, New Delhi through notification dated 15.11.1975 for the Combined Defence Service Examination, 1976 and joined the Defence Services on 16.05.1977 and was commissioned on 18.03.1978 and as such they were entitled for the reassignment of seniority in compliance of the judgment and order passed by this Hon'ble Court, which was rightly given by the State Government by the impugned order. He further submitted that the writ petition is not maintainable as the petitioners by challenging the Government Order dated 13.03.2003 are actually challenging the judgment and order dated 31.08.1999 passed in Civil Misc. Writ Petition No. 37008 of 1999 and the judgment and order dated 24.05.1999 passed in Civil Misc. Writ Petition No. 5380 of 1999. He further submitted that no opportunity was required to be given to the petitioners as the opposite parties No. 3 and 4 were entitled for reassignment of seniority in compliance of the judgment and order passed by this Hon'ble Court. Mr.Chaturvedi has relied upon the decision of Hon'ble the Supreme Court in the case of Managing Director,ECIL, Hyderabad and Ors. v. B.Karunakar and Ors. reported in : (1994)ILLJ162SC and State of Maharashtra v. Lok Shikshan Sanstha reported in : AIR1973SC588 . He further submitted that the judgment and order dated 09.05.2007 in the case of State of U.P. and Anr. v. Dinkar Sinha(Supra) is of two Hon'ble judges of the Hon'ble Supreme Court and is not applicable to the facts of the present case. He further submitted that Hon'ble the Supreme Court in State of U.P. and Anr. v. Dinkar Sinha (Supra) has denied the benefit of reassignment of seniority to Sri Dinkar Sinha only on the sole ground that Sri Dinkar Sinha was commissioned in the Armed Forces of the Union after 5.8.1978, i.e. 17.3.1979.
9. The learned Counsel for the opposite parties No. 3 and 4 has relied upon the decisions of Hon'ble the Supreme Court in the cases of Dilbag Singh v. State of U.P. and Ors. reported in : (1995)4SCC495 ; Ram Janam Singh v. State of U.P. and Ors. reported in : (1994)ILLJ901SC ; Mahesh Chand v. State of U.P. and Ors. reported in : (2000)10SCC492 ; Narendra Nath Pandey and Ors. v. State of U.P. and Ors. reported in : (1988)IILLJ479SC and Narendra Nath Pandey and Ors. v. State of U.P. and Ors. reported in 1989 Supp (1) SCC 676.
10. He further submitted that the judgment and order dated 24.05.1999 passed in Civil Misc. Writ Petition No. 5380 of 1999 and the judgment and order dated 31.08.1999 passed in Civil Misc. Writ Petition No. 37008 of 1999 were not challenged by the petitioners in Hon'ble the Supreme Court and as such they are binding and the opposite party No. 3 and 4 on the basis of the judgments and order passed by this Hon'ble Court were entitled for reassignment of seniority, which has rightly been awarded to them by the impugned order dated 13.03.2003. He has relied upon the decision in the case of Authorised Officers v. M.M. Krishnaswamy Chetty reported in (1998) Allahabad Civil Journal 1068.
11. The learned Standing Counsel appearing on behalf of the State of U.P. submitted that there is no illegality in the impugned order dated 13.03.2003 which has been passed by the State Government on the basis of the judgment and order passed by this Hon'ble Court and considering the provisions of the U.P. Non Technical (Class-II/Group 'B' Services) Appointment of Demobilised Officers Rules 1980. He further submitted that sufficient opportunity was given to the petitioners before passing the impugned order as objections were invited through letter dated 22.02.2003.
12. Sri R.K.Singh, leaned counsel for Sri Raghvendra Vikram Singh to whom right of hearing was provided submitted that there is no illegality in the impugned order passed by the State Government.
13. We have considered the submissions made by the learned Counsel for the parties and gone through the record. As common questions of law and facts are involved in these writ petitions, they are being disposed of by a common judgment and order.
14. The petitioners have alleged that Sri Sudhir Kumar, opposite party No. 3 was commissioned in the Army on 19.03.1977 as a Short Service Commission Officer and was released from defence services on 12.05.1982. The opposite party No. 3 passed the examination for appointment in the Provincial Civil Services in the year 1984 and joined the State Services on 07.07.1986. He was confirmed on 07.07.1988 and was allotted the batch year 1985 for the purposes of seniority. The petitioners have further alleged that Sri Rajendra Singh-respondent No. 4 applied for Short Service Commission and was Commissioned as a Defence Officer on 13.03.1978 and he was discharged from Defence Services on 05.07.1983. The opposite party No. 4 entered Class-II/Group B service of the State of U.P. on 01.11.1987 and was confirmed on 01.11.1989. The opposite party No. 4 was allotted the Batch Year 1986 for the purposes of seniority.
15. In exercise of the power under the proviso to Article 309 of the Constitution of India, the Governor of U.P. framed Uttar Pradesh Non-Technical (Class II) Services (Reservation of Vacancies for the Demobilised Officers) Rules, 1968 (hereinafter referred as 1968 Rules). These rules were to remain in force for a period of five years from the date of commencement. Rule 2(I) provided that Twenty per cent of the permanent vacancies in all Non-Technical (Class II) Services to be filled by direct recruitment through competitive examination in any year, shall be reserved for being filled in 'By the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union, who were commissioned on or after November 01, 1962 and who were released at any time thereafter'. Rule 4 provided the manner in which the seniority of candidates who were appointed against the aforesaid reserved vacancies, was to be determined.
16. The aforesaid Rules were substituted by the Uttar Pradesh Non-Technical (Class II) Services (Reservation of vacancies for the Demobilised Officers) Rules, 1973(hereinafter referred as 1973 Rules). These Rules were also to remain in force for a period of five years from the date of commencement. Rule 3 reserved 10% of the permanent vacancies in all Non-Technical (Class II) Services, to be filled substantively by direct recruitment through competitive examination in any year for 'the Disabled Defence Service Officers, Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union, who were commissioned on or after November 01, 1962 but before January 10, 1968 and again on or after December 03, 1971 and released at any time thereafter'.
17. A new set of Rules known as U.P.Non-Technical (ClassII/Group'B' Services)Appointment of Demobilized Officers Rules, 1980 was made by the State on or about 19.08.1980 for the purpose of regularizing the appointments of demobilized officers whose selection process had been commenced or concluded under the 1973 Rules but appointments had not been made before the expiry thereof.
18. Indisputably, the 1980 Rules do not contain any provision in regard to reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India.
19. The 1980 Rules defined demobilised officers in the following terms:
'Demobilised Officer' means Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer, of the Armed Forces of the Union who was Commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter Rule 4 of the 1980 Rules provide for appointment:
4. Appointment: A person selected for appointment to a non-technical Class II/Group-B' service or post against the vacancies reserved for demobilised officers, as a result of recruitment, the process of which was concluded or commenced prior to August 6, 1978, in accordance with the provisions of the Uttar Pradesh Non-technical (Class II) Service (Reservation of Vacancies for Demobilised Officers) Rules, 1973 (hereinafter to be referred to as the said rules), shall be eligible and be considered for appointment against the vacancies reserved for demobilised officers under the said rules:
Provided that the reserved vacancies shall be utilised first for the appointment of disabled defence service officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other emergency commissioned officers and short service commissioned officers.Explanation:- The notification of vacancies or the advertisement thereof by the Commission shall, among others, be a process of recruitment within the meaning of this rule.
20. Hon'ble the Supreme Court in the case of State of U.P. and another Dinkar Sinha(Supra) after considering the Uttar Pradesh Non-Technical (Class II) Services (Reservation of Vacancies for the Demobilised Officers) Rules, 1968; the Uttar Pradesh Non-Technical (Class II) Services (Reservation of vacancies for the Demobilised Officers) Rules, 1973; U.P.Non-Technical (ClassII/Group'B' Services) Appointment of Demobilized Officers Rules, 1980 and the decisions in Dilbag Singh v. State of U.P. and Ors. (Supra); Ram Janam Singh v. State of U.P. and Ors. (Supra); Mahesh Chand v. State of U.P. and Ors. (Supra), Narendra Nath Pandey and Ors. v. State of U.P. and Ors. (Supra) has held that the 1980 Rules neither repealed nor replaced the 1973 Rules. The question of continuation of the 1973 Rules by the 1980 Rules, thus, did not and could not arise. Hon'ble the Supreme Court has further held that the 1973 Rules provided for reservation of vacancies for the demobilised officers and the 1980 Rules provided for appointment of demobilised officers to a limited category of employees and while allowing the appeal, Hon'ble the Supreme Court has also held that the 1980 Rules would cover only those persons who were appointed against the vacancies referred to in the 1973 Rules and not those who joined later.
21. The opposite parties 1 and 2, in the counter affidavit, have stated that on the basis of the judgment and order passed by this Hon'ble High Court, a tentative seniority list was prepared and circulated by the State Government vide Government Order dated 22.02.2003 and objections were also invited from the officers within 15 days and as per the office note dated 11.03.2003 no objection was received. The representation preferred by Arvind Narain Mishra on 12.03.2003 was received in the Section on 19.03.2003 and the representation of Sri Shambhu Singh Yadav dated 12.03.2003 received in the Section on 14.03.2003. It has also been stated that the representations of the petitioners were consigned to file treating it to be time-barred as they were received in the Section after 13.03.2003 and accordingly by the Government Order dated 13.03.2003 the tentative seniority was given finality. The opposite parties 1 and 2 have not filed/placed before this Court any document to show that any notice was ever issued/served upon the petitioners in pursuance of the order dated 22.02.2003.
22. Hon'ble the Supreme Court in the case of Canara Bank and Ors. v. Debasis Das and Ors. reported in : (2003)IILLJ531SC has held as under in the following paragraphs:
13. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
14. The expresions 'natural justice' and 'legal justice' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedentry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.
15.The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes betweeen the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the 'Magna Carta.' The classic exposition of Sir Edward Coke of natural justice requires to 'vocate, interrogate and adjudicate.' In the celebrated case of Cooper v. Wandsworth Board of Works, the principle was thus stated:
Even God himself did not pass sentence upon Adam, before he was called upon to make his defence. 'Adam' says God, 'where art thou? Has thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat.' Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
17. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, LJ) in Ray v. Local Government Board described the phrase as sadly lacking in precision. In General Council of Medical Education and Registration of U.K. v. Spackman Lord Wright observed that it was not desirable to attempt 'to force it into any procrustean bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give 'a full and fair opportunity' to every party of being heard.
19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
Hon'ble Supreme Court in the case of R. Sulochana Devi v. D.M. Sujatha and Ors. reported in : AIR2005SC4152 again held that an order made in violation of natural justice is void. In the case of Rabindra Singh v. Financial Commissioner, Cooperation, Punjab and Ors. reported in (2008) 7 S.C.C. 663 Hon'ble the Supreme Court has held as under:All courts in a situation of the present nature have the incidental power to set aside an ex parte order on the ground of violation of the principles of natural justice. Thus, even in the absence of any express provision, having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law.
23. It is admitted case of the parties that the opposite parties 3 and 4 joined U.P. Civil Services(Executive Branch) on 07.07.1986 and 01.11.1987 respectively. It is also not disputed that both the opposite parties 3 and 4 were appointed under the provisions of U.P. Civil Services(Executive Branch) Rules, 1982 as evident from their appointment letters. It is also not disputed that the emergency was revoked on 27.03.1997 and the opposite party No. 4 was commissioned in the armed forces on 13.03.1978 when there was no emergency in the country. It is relevant to mention here that the petitioners were not party in the writ petition in which the judgment and orders dated 24.05.1999 and 31.08.1999 were passed. In the counter affidavit filed by the State it has been admitted that the representation dated 12.03.2003 preferred by Sri Arvind Narain Misra and the representation of Sri Shambhu Singh Yadav dated 12.03.2003 were consigned to file treating it to be time-barred.
24. The record reveals that the petitioners were not given any opportunity to file objections against the tentative seniority which was ordered to be circulated by the Government Order dated 22.02.2003. By the judgment and orders dated 24.05.1999 and 31.08.1999 passed by this Court, the opposite parties 1 and 2 were directed to consider the seniority of the opposite parties 3 and 4, in accordance with law. From the record, it is evident that no effective opportunity was afforded to the petitioners before re-fixing the seniority of the opposite parties 3 and 4 from 563 and 607 to 226-B and 266-B. It is the settled law that doctrine of natural justice is not merely a matter of procedure but of substance and any action taken in contravention of natural justice is violative of fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution of India. The Hon'ble Supreme Court in the case of Rajesh Kumar and Ors. v. Dy.CIT and Ors. reported in : [2006]287ITR91(SC) has held that when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. The case law cited by the learned for opposite parties 3 and 4 are not applicable to the facts of the present case. Since the seniority of the opposite parties 3 and 4 has been re-fixed without affording any opportunity to the petitioners, the impugned order dated 13.03.2003 is legally not sustainable.
25. In the result, the writ petitions succeed and are hereby allowed. The impugned order dated 13.03.2003, a copy of which has been annexed as Annexure 8 to Writ Petition No. 494(S/B) of 2003 is quashed. The opposite parties 1 and 2 are directed to reconsider the seniority of the opposite parties No. 3 and 4, in accordance with law, after affording opportunity to the petitioners and other affected parties.
26. In the circumstances, there shall be no order as to costs.