- (1.) Leave granted in Special Leave Petitions Nos. 8106 and 8264 of 1994.
(2.) These appeals by special leave arise from the judgments of the division bench of the High court of Allahabad in WP Nos. 72 (SB) of 1994 and I 14 (SB) of 1994 dated 18/3/1993. The facts are that the respondents were temporarily appointed on ad hoc basis as Assistant Engineers in U. P. Local Self-Government Engineering Department. On an earlier occasion, when writ petition was filed, the High court adjudicated the dispute and had observed in its order dated 14/1/1993, in WP No. 8504 of 1987 at paragraphs 17 and 18 thereof thus: "It follows from the conclusions arrived at above that the Jal Nigam must publish the merit list prepared by the Selection Committee and take necessary action for determining seniority according to that list. The merit list could not be produced by the Jal Nigam before the tribunal. There are three alternatives. First that the original merit list is traced out by the Jal Nigam and is acted upon after considering objections, if any, which may be made against the same by the Assistant Engineers concerned. The second alternative is that if the original merit list is not traceable, an attempt is made to reconstruct and publish the same and after inviting objections thereto from the Assistant Engineers concerned and disposing of the objections action is taken according to law. The third alternative is that the copy of the merit list produced by the claimants before the tribunal is taken into account for determining seniority provided the genuineness of the merit list is accepted by all the persons affected by it after opportunity for the same is given to them by the Jal Nigam in this behalf. In case none of these alternatives is feasible, there can be no other course left open for the Jal Nigam except to constitute a fresh Selection Committee under the relevant rules for the purposes of drawing a fresh merit list of the parties concerned on the basis of their performance as indicated by the available records up to 26/12/1977. The whole exercise must be completed within a period of two months. After hearing the learned counsel for the parties at great length, I have come to the conclusion that the writ petition deserves to be allowed. The writ petition is accordingly allowed and the impugned judgment and order of the U. P. Public Services tribunal dated 1/7/1987 is hereby quashed. The impugned seniority list dated 26/12/1977 is also quashed. It is directed that the U. P. Jal Nigam shall draw a fresh seniority list in accordance with the relevant service rules which were in force on 26/12/1977. The fresh seniority list shall be drawn within a period of two months from the date on which a copy of this order/judgment is produced before the competent authority. In drawing the seniority list, the U. P. Jal Nigam shall take into account the merit list alleged to have been prepared by the claimant before the aforesaid tribunal provided the genuineness of the merit list is accepted by all the persons affected by it after opportunity for the same is given to them by the Jal Nigam in this behalf. In case the genuineness of the merit list is not accepted by the parties then it will be open to the Jal Nigam to constitute a fresh Selection Committee as required under the relevant rules for the purposes of determining the merit of the parties concerned, the fresh seniority list shall be finally prepared after giving an opportunity to the parties concerned to show cause against the same. In any case the whole exercise must be completed within a period of two months as already indicated. Parties to bear their own cost. Reasons will follow. "
(3.) Since the record has not been traced out and the officers who dealt with the matter at the relevant point of time though were contacted, could not assist the U. P. Jal Nigam in tracing the record, they lodged the FIR with the police to investigate into the persons responsible for the destruction of the record. Consequently, the last option given by the High court in the said order viz. constitution of the fresh Selection Committee was resorted to and a Committee was accordingly constituted. The legality of the constitution of the Committee,when came to be challenged in the writ petitions, by the impugned order of the division bench made in them, it is observed: "We do not intend to go into detail as to whether the three alternatives as provided in the directions contained in paragraph 17 of the judgment were strictly followed and if not followed then for valid reasons or not; we proceed to examine the scope of the present Selection Committee which has been ultimately constituted by the U. P. Jal Nigam. We are doing so specially for the reason that the matter relating to determination of seniority of the Assistant Engineers has been hanging fire for about two decades now and the promotion of certain Assistant Engineers on the basis of the impugned seniority list of December 1977 are also in jeopardy. Therefore, assuming that the authorities could neither trace the previous merit list nor was there any consensus on the genuineness of the seniority list produced by some of the Assistant Engineers before the Public Services tribunal, the only way left out for the authorities was to constitute a fresh Selection Committee under the relevant rules which they have done but then it appears that the authorities have ignored the rider that this merit list has only to be reconstituted on the basis of their performance as indicated by the available record up to December 1977 and no new material could be added. It has nowhere been stated by the Jal Nigam either in the counter- affidavit or during the course of the arguments that since records of the Assistant Engineers concerned who had participated in the Selection Committee of March 1976 as produced before the Selection Committee are not available today. In these circumstances, the authorities have clearly acted contrary to the directions issued by this court by attempting to hold fresh interview and assess the Assistant Engineers on the basis of their present performance. ";