U. C. Srivastava, S. H. A. Raza, JJ. - (1.) In these three writ petitions, the petitioners who earlier were Junior Engineers in Lucknow Nagar Mahapalika and later on after coming into existence of Lucknow Development Authority, started working in it as Junior have prayed certain reliefs and have claimed that they belong to Lucknow Development Authority Cadre (hereinafter referred to as the L. D. A.) and are entitled to promotion to the post of Assistant Engineer. Writ Petition No. 1330 of 1983 has been filed by Laxmi Shanker Bajpai and 14 others praying that the order, dated 14-2-1983 passed by the L. D. A. promoting opposite parties 5 to 9 be quashed and a mandamus be issued directing opposite parties 1 to 4 to promote the petitioners to the said post of Assistant Engineer. In Writ Petition No. 3976 of 1986, similar prayer has been made for quashing provisions of Section 5-A(2) of Uttar Pradesh Urban Planning and Development Act, 1973 as amended by U. P. Act No. 19 of 1985 so far as it excludes the absorption of employees belonging to the U. P. Palika (Centralised) Service in the Development Authority and quash the order dated 23-5-1986 continued in Annexure 4. It has been further proved that a mandamus be issued commanding the respondents to give benefit of Section 5-A(2) of Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the Act) to the petitioners as well and to consider their promotion on the post of Assistant Engineer in the L. D. A. on the basis of seniority and continuous service as Junior Engineer. Writ Petition No. 4539 has been filed by Laxmi Shanker Bajpai with the prayer that a mandamus be Issued to the respondents to prepare the seniority list of Junior Engineers of U. P. Palikas (Centralised) Service after taking into account the submissions made by them in their representation, dated 5 8-1985 and not to make any promotions on the post of Assistant Engineer on the basis of selection held on or about 17-5-1986 and to consider their case for promotion to the said post. It has been further prayed that a mandamus be issued quashing sub-rule (9) of Rule 21-A of the U. P. Palika (Centralised) Services (Twelfth Amendment) Rules, 1984 and to quash the promotion order dated 23-5-1986 contained in Annexure 7 so far as the promotion of respondents Nos. 3 to 11 is concerned.
(2.) The petitioners to Writ Petition No. 1330 of 1983 were appointed as Junior Engineers in the service of U. P. Palika (Centralised) Service on various dates from 1967 to 1981. The Development Authority in the State of U. P. were constituted in the year 1974 under the said Act. Under Section 59(4) of the Act all the Junior Engineers working on the development side in the Nagar Mahapalika, Lucknow were transferred to the L. D. A. along with their posts with the stipulation that said post was continued to be filled in by the members of Palika Centralised Service. Section 2(e) of the Act defines the word (development) which reads as under : "Development with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development." Section 59 deals with repeal etc. and Savings. In view of Section 59(4) of the Act non-centralised posts connected with the development activities in Mahapalika were transferred to the development authority along with their incumbents. Section 59(9) provides for merger of the erstwhile Trust and it provides that every officer and other employees serving under an Improvement Trust shall be transferred to and shall become an officer or other employee of the Development Authority with such designations as the Authority may determine and shall hold office by the same tenure, at the same remuneration and on same terms and conditions of service as he would have held the same if the Authority had not been constituted It further seems that Section 5(2) of the Act empowered the Development Authority to appoint Additional Administrator and other staff. Section 5 of the Act reads as under : "5. Staff of the Authority. - (1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice-Chairman. (2) Subject to such control and restrictions as may be determined by general or special order of the State Government, the Authority may appoint such number of other officers and employees as may be necessary for efficient performance of its functions and may determine their designations and grades. (3) The Secretary, the Chief Accounts Officer and other officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such other conditions of service as may be determined by regulations made in that behalf". Under the rules the petitioner continued to be the members of Palika Centralised Service and continued as Junior Engineers working with the Development Authority. Under the rules they were entitled for regularisation but it appears that the matter lingered on. Rule 21 of U. P. Palika Centralised (Service) Rules, 1966 (hereinafter referred to as the Rules), provides as under : "21. Appointment. - (1) On the occurrence of substantive vacancies, the Government shall make appointment to the Centralised Services from the list prepared under Rule 19, and by promotion in accordance with the provisions of Rule 20 : Provided that in case where appointment made both by promotion and direct recruitment, the Government shall make appointment in such vacancies by taking candidates alternately so far as this may be possible from the two lists of promoted and directly recruited candidates. Candidates shall be taken in the order in which they stand in the list and the first candidate taken shall be from the list promoted candidates. (2) The Government may also make appointment in temporary vacancies for a period exceeding six weeks from the persons selected for promotion under Rule 20............... Provided that if no approved candidate is available for such appointment, the Government may appoint a candidate who is eligible under the rules for permanent recruitment to the Centralised Services. The appointments under this proviso shall be subject to the provisions contained in the U. P. Public Service Commission (Limitation of Functions) Regulations, 1954. The said service Rules were altered by 10th Amendment 1974 The said amendment provided that any person who was directly appointed before 1-5-1983 and was continued in service and possessed requisite qualification shall be considered for appointment. Sub-rule (9) of the said amendment provides that a person appointed under Rule 21 shall be entitled to seniority from the date of order. No seniority list of Junior Engineers was prepared and the petitioner made a re presentation for fixation of his seniority from the date of his initial appointment But it appears that the representation filed by the petitioner remained pending and a seniority list was prepared. The State Government subsequently took a decision to regularise the ad hoc appointments without any reference to the Public Service Commission subject to the framing of rules for the purpose. The crucial date initially was fixed as 1-1-1977 but later on it was changed to 1-5-1983. The appointment of the petitioner was regularised only with effect from 5-5-1987. The petitioner being a member of centralised service was not promoted to the post of Assistant Engineer and the persons appointed subsequent to his appointment directly as Junior Engineer or who came through Public Service Commission were promoted. Because of his exclusion the petitioner filed Writ Petition No. 1130 of 1983 in this court. In the year 1984 the State Government issued an ordinance dated 19-10-1984 known as the Uttar Pradesh Urban Planning and Development (Amendment and Validation) Ordinance, 1984 by which Section 5-A was inserted in the Uttar Pradesh Urban Planning and Development Act, 1973. Section 5-A reads as under: 5-A. (1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more "Development Authorities Centralised Service" for such posts as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to, and the terms and conditions of service of persons appointed to such service ; (2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, shall, unless he opts otherwise, be absorbed in such service : (a) finally, if he was already confirmed in his post, and (b) provisionally, if he was holding, temporary or officiating appointment. (3) A person referred to in sub-section (2) may, within three months from the creation of such Development Authorities Centralised Service communicate to the Government in the Housing Department, his option not to be absorbed in such Centralised Service, failing which he shall be deemed to have opted for final or provisional, as the case may be absorption in such Centralised Service." The Ordinance, as it is, did not make the position clear and it also applied to the Junior Engineers belonging to the Palika Centralised Service for absorption in it. It seems that in order to clarify the position a subsequent ordinance known as the Uttar Pradesh Urban Planning and Development (Amendment and Validation) Ordinance, 1985 (U. P. Act No. 10 of 1985), the Uttar Pradesh Planning and Development (Amendment and Validation) Ordinance, 1984 (U. P. Ordinance No. 19 of 1984) was repealed and by sub-section (2) of Section 5-A which was inserted by Ordinance No. 10 of 1985 ; it was provided that only such employees who were working in the Development Authorities on the date of creation of such Development Authorities Centralised Service were to be absorbed in the Development Authorities and not those persons who governed by U.P. Palika (Centralised) Services Rules, 1966. Section 5-A (.2) as inserted by Ordinance No. 10 of 1985 is being quoted below : "5-A. (2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the U. P. Palika (Centralised) Services Rules, 1966, or serving on deputation, shall, unless he opts otherwise, be-absorbed in such service - (a) finally, if he was already confirmed in his post, and (b) provisionally is he was holding temporary or officiating appointment." The above two Ordinances No. 19 of 1984 and 10 of 1985 were repealed by the Uttar Pradesh Urban Planning and Development (Amendment and Validation) Act, 1985 (U. P. Act No. 19 of 1985). It was thereafter the State Government in exercise of its powers under Section 55 of the Act read with Section 5-A of the Act framed the U. P. Development Authorities (Centralised) Service Rules, 1985. Rule 24 of the said Rules provide promotion on the next higher post on the basis of seniority subject to rejection of unfit. While Schedule IV to the said Rules provides that a Junior Engineer is entitled to promotion to the post of Assistant Engineer if he fulfils the requisite qualifications for the post of Junior Engineer and possesses 10 years, experience of the post . .. It was thereafter that Junior Engineers belonging to the U P. Development Authorities (Centralised) Service have been promoted other posts of Assistant Engineer vide order dated 23-5-1983.
(3.) The petitioners who have challenged the vires of said Act and Rules have further stated that vide order dated 11-3-1983 Sri A. P. Singh, the then Vice-Chairman of L. D A. had appointed one A. K. Khanna Assistant Engineer of U. P. Palika (Centralised) Service on the post of Executive Engineer in the L. D. A. Similarly vide another order dated 23-3-1984 one Hari Narain Dubey who was Executive Engineer in the U. P. Palika (Centralised) Service and was working in the L. D. A. was promoted on the post of Chief Engineer in the L D. A. on the condition that he would resign from the U. P. Palika (Centralised) Service and would opt for final absorption in the service of the Lucknow Development Engineer Service. The order regarding the said Shri H. N. Dube is quite clear. He was to resign from Palika Centralised Service and was to opt for final absorption in the service of Development Authority. The order regarding A. K. Khanna is on the record. In one of the counter-affidavit it has been stated that he has been given seniority in the Development Authority from the date of absorption only. Even if there was some illegality in the appointment of the said A. K. Khanna which is not subject-matter of challenge in these petitions that could not change on effect the legal position or be precedent for any other illegal appointment. It is for the authorities concerned to rectify any mistake if the same can be done.;