STATE OF UTTARANCHAL & ANR v. RAJENDRA SINGH KANDWAL [2011] INSC 632 (20 July 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5130 OF 2009

State of Uttarakhand & Another ..Appellants

versus

Archana Shukla & Others ..Respondents

WITH CIVIL APPEAL NO.1474 OF 2007 O R D E R Civil Appeal No.5130 of 2009 Heard learned counsel for the parties.

This Appeal has been filed against the impugned judgment and order dated 06th March, 2006 passed by the High Court of Uttarakhand at Nainital in Writ Petition No. 140/2005.

The facts have been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary.

The respondents herein were appointed on adhoc officiating post in the year 1988 for a fixed term which was continued. They were regularised in the year 2004 under the Uttaranchal Regularization of Ad Hoc Appointments (Posts under the purview of Public Service Commission) Rules, 2002 ( for short 'the Rules'). The respondents claimed benefit of their service from 1988 to 2004 for the purpose of seniority and this has been granted by the High Court. Hence, this appeal.

CIVIL APPEAL NO.5130 OF 2009 etc.

-2- We are afraid, we cannot agree with the view taken by the High Court.

Rule 7(1) of the Rules states as under:

"A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules or as the case may be, the regular prescribed procedure, prior in the appointment of such person under these rules."

Admittedly, the respondents were appointed after a selection under the Regularization Rules in the year 2004. Hence, in our view, they can get seniority only from the year 2004 and not from 1988. The rule is clear and hence we cannot debar from the clear meaning of the rule.

It has been held in Raghunath Rai Bareja & Another vs. Punjab National Bank & Others (2007) 2 SCC 230 that when there is a conflict between law and equity, it is the law which has to prevail in accordance with the latin maxim 'dura lex sed lex' which means 'the law is hard but it is the law'. Equity can only supplement the law, but it cannot supplant or override it. This view was followed in Civil Appeal No.2684 of 2007 titled B.Premanand & Others vs. Mohan Koikal & Others decided on 16th March, 2011.

In the present case, Rule 7 is very clear and hence the CIVIL APPEAL NO.5130 OF 2009 etc.

-3- respondents are not entitled to the benefit of their service from 1988 to 2004 for the purpose of their seniority.

Accordingly, this appeal is allowed and the impugned judgment of the High Court is set aside. No costs.

Civil Appeal No.1474 of 2007 In view of our order passed today in Civil Appeal No. 5130 of 2009, this appeal is also allowed and the impugned judgment of the High Court is set aside. No costs.

.........................J.

[MARKANDEY KATJU] NEW DELHI;

.........................J.