Allahabad High Court
Shanti Shekhar Singh vs State Of U.P Thru Prin Secy Commercial ... on 4 May, 2017
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved 1. Case :- SERVICE BENCH No. - 19231 of 2016 Petitioner :- Shanti Shekhar Singh Respondent :- State Of U.P Thru Prin Secy Commercial Tax Lko & Ors Counsel for Petitioner :- Apoorva Tewari Counsel for Respondent :- C.S.C,Sandeep Dixit,Vinayak Saxena 2. Case :- SERVICE BENCH No. - 21520 of 2016 Petitioner :- Brijesh Kumar Deepankar & Anr. Respondent :- State Of U.P Thru.Prin.Secy.Deptt.Commercial Tax Lko.& Ors. Counsel for Petitioner :- Amit Dwivedi Counsel for Respondent :- C.S.C 3. Case :- SERVICE BENCH No. - 20119 of 2016 Petitioner :- Pushpesh Singh & 16 Ors. Respondent :- State Of U.P Thru.Prin.Secy.Finance Tax & Registration & Ors Counsel for Petitioner :- V.P. Nag Counsel for Respondent :- C.S.C 4. Case :- SERVICE BENCH No. - 18074 of 2016 Petitioner :- Chandra Shekhar Singh & 8 Ors. Respondent :- State Of U.P Thru. Prin.Secy.Tax And Registration Lko.& Ors. Counsel for Petitioner :- Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C,A.K.Srivastava,Ashish Kr.Singh,Ashish Kumar Singh,Hemant Kumar Mishra,R.B.S.Rathore,Surya Narayan Mishra,Vinayak Saxena And 5. Case :- SERVICE BENCH No. - 15963 of 2016 Petitioner :- Anand Kumar Rai And 15 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Institutional & Ors. Counsel for Petitioner :- Sandeep Dixit Counsel for Respondent :- C.S.C. Hon'ble Shri Narayan Shukla, J.
Hon'ble Sheo Kumar Singh-I, J.
(Delivered by Sheo Kumar Singh-I, J.)
1. By means of the aforesaid writ petitions filed under Article 226 of the Constitution of India, the petitioners have assailed the order dated 18.07.2016 passed by U.P. Government whereby the final seniority list for the cadre of Assistant Commissioner, Commercial Tax has been finalized and issued. Writ Petition Nos.19231 (SB) of 2016, 21520 (SB) of 2016, 20119 (SB) of 2016 and 18074 (SB) of 2016 have been filed for quashing the same seniority list i.e. 18.07.2016 with prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to prepare fresh seniority list in accordance with rules. While filing the Writ Petition No.15963 (SB) of 2016 (A.K. Rai and others vs. State of U.P. and others), the petitioners have prayed for issue a writ, order or direction in the nature of mandamus directing the opposite parties to finalize gradation list/seniority list from serial no.2116 and onwards and to further hold departmental promotion for remaining 42 posts of Deputy Commissioner of the recruitment year 2015-2016. The list contains the officers of two categories mentioned in Rule 5(a) (i) and (ii) of the Uttar Pradesh Sales Tax Service Rules, 1983 (for short, 1983 Rules). The recruitment on the post of Assistant Commissioner, Commercial Tax is made by direct recruitment and by promotion from amongst Commercial Tax Officers and the quota as prescribed is 50% each. The petitioners of Writ Petition No.19231 (SB) of 2016 were recruited on the basis of combined State Subordinate Service Examination, 2007 on the basis of a competitive examination and were given appointment on the following dates:-
Sl. No. Name Date of appointment 1 Shanti Shekhar Singh 09.02.2011 2 Prabhat Kumar Pathak 09.02.2011 3 Rahul Kumar Dwivedi 24.12.2010 4 Bhawesh Singh 09.02.2011
2. Respondent nos. 4 to 8 were promoted on the post of Assistant Commissioner, Commercial Tax from the post of Commercial Tax Officers vide order dated 28.07.2010. The service conditions for the post are governed by 1983 Rules. Nomenclature of the Sales Tax Officer Grade-I was changed to Trade Tax Officer Grade-I in the year 2002 and further in 2008 the nomenclature was again changed and re-named as Assistant Commissioner, Commercial Tax. By 4th amendment made in the rules in the year 2002 the words Sales Tax Officer/Commercial Tax Officer were substituted by the words Assistant Commissioner.
3. It would be appropriate to quote certain rules and provisions relating and governing the service conditions of the officers of the Commercial Tax Department. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India the rules regulating recruitment and conditions of service of persons appointed to Uttar Pradesh Sales Tax Service were made vide Notification dated 24.12.1983, which defines as follows:-
2. Status of the Service. - The Uttar Pradesh Sales Tax Service is a State Service comprising Group A and Group B posts.
3. Definitions. - In these rules, unless there is anything repugnant in the subject or context:
(a) "Appointing Authority" means the Governor of Uttar Pradesh;
(b) "Assistant Commissioner" means an officer appointed as Assistant Commissioner, Sales Tax;
(c) ...........
(d) "Commission" means the Uttar Pradesh Public Service Commission;
(e) .........
(f) .........
(g) .........
(h) .........
(i) .........
(j) "Member of the Service" means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the Service;
(k) ..........
(l) ..........
(m) "Service" means the Uttar Pradesh Sales Tax Service;
(n) "Substantive" appointment means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
(o) "Year of recruitment" means a period of twelve months commencing from the first day of July of calendar year.
5. Source of Recruitment. - (1) Recruitment to the various categories of posts in the Service shall be made from the sources indicated against each:
(a) Sales Tax Officer. - (i) By direct recruitment on the result of competitive examination conducted by the Commission, and
(ii) By promotion, through the Commission, from amongst permanent Sales Tax Officers, Grade-II who have put in not less than seven years' service as such.
Note. - A combined competitive examination may be held by the Commission for recruitment to the U.P. Civil (Executive) Service and any other State Services including this Service.
(b) Assistant Commissioner. - By promotion from amongst permanent Sales Tax Officers who have put in not less than seven years' service as such.
(c) Deputy Commissioner. - By promotion from amongst permanent Assistant Commissioners who have put in not less than seven years' service as such.
(2) If suitable candidates are not available for promotion on the posts of Sales Tax Officer from the prescribed field of eligibility, the Governor may, in consultation with the Commission, extend the field of eligibility to the extent considered necessary.
Part V Procedure for Recruitment
14. Determination of vacancies. - The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Sales Tax Officer to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6.
15. Procedure for direct recruitment on the posts of Sales Tax Officer. - (1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment, if any.
(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other under Rule 6, summon for interview such number of candidates as, on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the lists shall be larger (but not larger by more than 25 per cent) than the number of vacancies. The Commission shall forward the list to the appointing authority.
16. Procedure for recruitment by promotion on the posts of Sales Tax Officer. - Selection to the posts of Sales Tax Officer by promotion shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in consultation with the Public Service Commission (Procedure) Rules, 1970, as amended from time to time.
17. Procedure for recruitment by promotion on the posts of Assistant Commissioner and Deputy Commissioner. - (1) For the purpose of recruitment by promotion to the posts of Assistant Commissioner and Deputy Commission there shall be constituted a selection committee consisting of -
i. The Secretary (Chairman).
ii. The Commissioner (Member).
iii. The Secretary to Government in the Karmik Department (Member).
(2) Recruitment by promotion shall be made on the basis of seniority subject to rejection of the unfit through the Selection Committee constituted under sub-rule (1).
(3) The Secretary shall prepare a list of the eligible candidates in the order of their seniority and place it before the Selection Committee together with the gradation list, character rolls and other records pertaining to the candidates which may be considered relevant to the selection.
(4) The Selection Committee shall consider the cases of the candidates with the help of their character rolls and other relevant records. If it considers necessary, it may interview the candidates also.
(5) The Committee shall draw up a list of the selected candidates arranged in the order of their seniority on the post from which they have been selected and forward the same to the appointing authority.
18. Combined Select List. - If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates from the relevant lists, in such manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion.
19. Appointment. - (1) Subject to the provisions of sub-rule (2) the appointing authority shall make appointments by taking the names of candidates in the order in which they stand in the lists prepared under Rules 15, 16, 17 or 18, as the case may be.
(2) Where, in any year of recruitment appointments are to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 18.
(3) If more than one orders of appointment are issued in respect of any one selection, a combined order shall also be issued mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the list prepared under Rule 18.
(4) The appointing authority may make appointments in temporary or officiating capacity also from the list referred to in sub-rule (1). If no candidate borne on these lists is available, he may make appointments in such vacancies from amongst persons eligible for appointments under these rules. Such appointments shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier, and where the post is within the purview of the Commission, the provision of regulation 5(a) of the U.P. Public Service Commission (Limitation of Functions) Regulations, 1954 shall apply.
20. Probation. - (1) A person on appointment to a post in the Service in or against a permanent vacancy shall be placed on probation for a period of two years.
(2) The appointing authority may, for reasons to be recorded, extent the period of probation in individual cases specifying the date up to which the extension is granted:
Provided that, save in exception circumstances, the period of probation shall not be extended beyond one year and in no circumstances beyond two years.
(3) If it appears to be appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction he may be reverted to his substantive post, if any, and if he does not hold a lien on any post, his services may be dispensed with.
(4) A probationer who is reverted or whose services are dispensed with under sub-rule (3) shall not be entitled to any compensation.
(5) The appointing authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into account for the purpose of computing the period of probation.
22. Seniority. - (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean the date of issue of the order:
Provided further that, if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of Rule 19.
(2) The seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by the Commission:
Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reason shall be final.
(3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.
29. Regulation of other matters. - In regard to the matters not specifically covered by these rules or by special orders, persons appointed to the Service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State.
4. A tentative seniority list of the cadre of Assistant Commissioner, Commercial Tax from serial no.2116 to 2702 was issued on 01.01.2016 wherein the officers promoted to the post of Assistant Commissioner in the recruitment year 2010-2011 were placed in block over and above the direct recruits of that particular year. Aggrieved by the aforesaid seniority list, the officers recruited under the provisions of Rule 5(a) (I) of 1983 Rules submitted certain objections against the tentative seniority list and vide impugned order dated 18.07.2016 the objections filed by the petitioners were rejected and final seniority list in the cadre of Assistant Commissioner, Commercial Tax has been issued wherein the officers coming under the category of Rule 5(a) (ii) (by way of promotion) were placed in block over and above the direct recruits of that particular year. It has been narrated that seniority list prepared by the department vide order dated 18.07.2016 is in violation of Articles 14 and 16 of the Constitution of India in applying Rule 8 (iii) of the Seniority Rules, 1991.
5. While submitting counter affidavit on behalf of opposite parties 1 to 3, it has been submitted that while preparing the seniority list the respondents had taken care of the rules regulating the service conditions of the officers of this cadre as well as the direction of Hon'ble the Apex Court as held in Civil Appeal Nos.9906, 9907 and 9908 of 2003 decided on 10.02.2011. Hon'ble the Apex Court has summarized the legal position with regard to determination of seniority in the following manner:-
30. From the above, the legal position with regard to determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.
31. In light of the legal position summed up above and rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies. The 1991 appointees having been appointed substantively much prior in point of time, they are entitled to rank senior to 1994 appointees. As already noticed above, rule 5 of the 1991 Rules has no application for determination of inter se seniority of the Deputy Jailors appointed by direct recruitment in 1991 and 1994. The consideration of the matter by the High Court is apparently flawed and cannot be sustained. In the present fact situation, it must be held that 1994 appointees cannot legitimately claim their seniority over 1991 appointees.
6. Taking care of the Seniority Rules, 1991, and the law laid down by the Hon'ble Apex Court the respondents have followed following standards for determination of the seniority:-
i. Seniority from the date of substantive appointment of incumbent either from direct recruitment or from promotee quota.
ii. Respective seniority of Assistant Commissioner of promotee quota in terms of their seniority in feeding cadre.
iii. Inter-se seniority of direct recruits in order of their names appearing the list published by Public Service Commission.
iv. Where the date of substantive appointment of a promotee or direct recruit was same then ratio is 1:1 keeping promotee as first.
7. It has further been submitted in the counter affidavit that one of the fundamental principle of service jurisprudence is that officers will gain their seniority from the date of their substantive appointment and the respondents have taken care of this principle taking into account all the provisions of service rules and the Seniority Rules.
8. Before dealing with the matter, it would be appropriate to take into account the relevant provisions as contained in U.P. Government Servant Seniority Rules, 1991. In pursuance of the provisions of Clause (3) of Article 348 of the Constitution and in exercise of the powers conferred by the proviso to Article 309 of the Constitution the rules for determination of seniority of persons appointed to the service under the State Government were framed which shall apply to all government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution.
9. 1991 Seniority Rules framed under the proviso to Art. 309 of the Constitution of India have overriding effect (Rule 3) and deals with the matter with regard to determination of seniority. According to Sub Rule (h) of Rule 4, substantive appointment has been defined as appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules of the respective services.
10. Rule 5 deals with determination of seniority where appointment is done by direct recruitment only and Rule 6 deals with the situation where seniority is liable to be determined in a situation where appointment is done only by promotion from a single feeding cadre. Rule 7 deals with a situation where appointment by promotion is done from several feeding cadres. However, Rule 8 deals with a situation where appointments are done by promotion and direct recruitment. Rule 8 is relevant for the purpose of determination of present controversy. For convenience, Rule 8 is reproduced as under :
8. Seniority where appointments by promotion and direct recruitment.--(1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub- rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order :
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean the date of issuance of the order:
Provided further that a candidate recruited directly may lose his seniority if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection,--
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-`-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations.--(1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order :
First .. .. .. Promotee Second .. .. .. Direct Recruits and so on (2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order :
First .. .. .. Promotee Second to fourth .. .. Direct Recruits Fifth .. .. .. Promotee Sixth of eight .. .. Direct recruits and so on Provided that :
(i) where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
11. Thus, under Sub Rule (1) of Rule 8, seniority is to be determined from the date of the order of substantive appointment. The proviso of Sub Rule (1) provides that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment but in other cases it will mean the date of issuance of the order. In the event of direct recruitment, the direct recruit shall lose seniority if he fails to join without valid reasons, when vacancy is offered to him. Under Sub Rule (2) of Rule 8, inter se seniority of persons appointed on the result of any one selection shall be the same as shown in the merit list prepared by the Commission.
12. However, under Sub Rule (3), where appointments are made both by promotion and direct recruitment on the result of any one selection, the seniority of promotees vis-a-vis direct recruits should be determined in a cyclic order (the first being a promotee) in accordance with the quota prescribed for the two sources. Where the quota of promotees and direct recruits is in the proportion of 1:1, the first shall be promotee and second shall be direct recruit but where the quota is in the proportion of 1:3, the seniority list shall give first place to promotee, second to fourth to direct recruits, fifth to promotee and sixth of eight to direct recruits. However, this shall be subject to certain conditions provided under the proviso to Rule 8 (supra).
13. It is argued that ordinarily, it is not possible to make selection through direct recruitment and promote persons in a single selection process.
14. In District Mining officer vs. Tata Iron and Steel co. (2001) 7 SCC 358, Hon'ble Supreme court has held that function of the court is only to expound the law and not to legislate. A statute has to be construed according to the intent of them and make it the duty of the court to act upon true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose the interpretation which represents the true intention of the legislature.
15. In Krishna vs. state of Maharashtra (2001)2 SCC 441: Hon'ble Supreme court has held that, in absence of clear words indicating legislature intent, it is open to the court ,when interpreting any provision , to read with other provision of the same statute.
16. In Essen Deinki vs. Rajiv Kumar (2002)8 SCC 409, it has been observed that it is the duty of the court to give broad interpretation keeping in view the purpose of such legislation of preventing arbitrary action however statutory requirement can not be ignored.
17. In Grasim industries ltd. vs. Collector of Custom (2002) 4 SCC297, it has been held that while interpreting any word of a statute every word and provision should be looked at generally and in the context in which it is used and not in isolation.
18. In Bhatia international vs. Bulk trading S.A. (2002)4 SCC 105, it has been held that where statutory provision can be interpreted in more than one way , court must identify the interpretation which represents the true intention of legislature. While deciding which is the true meaning and intention of the legislature, court must consider the consequences that would result from the various alternative constructions. Court must reject the construction which leads to hardship, serious inconvenience, injustice, anomaly or uncertainty and friction in the very system that the statute concerned is suppose to regulate.
19. In S.Samuel M.D. Harresons Malayalam vs. UOI (2004)1 SCC 256, it has been held that when a word is not defined in the statute a common parallence meaning out of several meanings provided in the dictionaries can be selected having regard to the context in which the appeared in the statute.
20. In M. Subba Reddy vs. A.P. SRTC (2004) 6 SCC 729, it has been held that although hardships can not be a ground for striking down the legislation, but where ever possible statute to be interpreted to avoid hardships.
21. In Delhi Financial Corpn. Vs. Rajiv Anand (2004)11 SCC 625, it has been held that legislature is presumed to have made no mistake and that it intended to say what it said. Assuming there is a defect or an omission in the words used by the legislature , the court can not correct or make up the deficiency , especially where a literal reading there of produces an intelligible result .the court is not authorized to alter words or provide a casus omissus.
22. In Deepal Girish bhai soni vs. United India insurance ltd. (2004) 5 SCC 385, it has been held that statute to be read in entirety and purport and object of Act to be given its full effect by applying principle of purposive construction.
23. In Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551, it has been held that interpretation of a statute depends upon the text and context there of and object with which the same was made. It must be construed having regard to its scheme and the ordinary state of affairs and consequences flowing there from - must be construed in such a manner so as to effective and operative on the principle of "ut res magis valeat quam pereat". When there is to meaning of a word and one making the statute absolutely vague, and meaningless and other leading to certainty and a meaningful interpretation are given, in such an event the later should be followed.
24. In Bharat petroleum corpn.ltd. vs. Maddula Ratnavali (2007) 6 SCC 81, it has been observed that Court should construe a statute justly. An unjust law is no law at all. Maxim "Lex in justa non est."
25. Deevan Singh vs. Rajendra Pd. Ardevi (2007)10 SCC528, it has been held that while interpreting a statute the entire statute must be first read as a whole then section by section , clause by clause , phrase by phrase and word by word .the relevant provision of statute must thus read harmoniously.
26. In Japani sahoo vs. Chandra shekhar mohanty (2007) 7 SCC 394, it has been held that a court would so interpret a provision as would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconditional by adopting rule of literal legis.
27. In 2010 (9) SCC 280, Zakiya Begum Vs. Shanaz Ali, it has been held that an Explanation to a section should normally be read to harmonise with and clear up any ambiguity in the main section and normally not to widen its ambit.
28. In 2010 (7) SCC 129, Bondu Ramaswamy Vs. Bangalore Development Authority, it has been observed that an interpretation that would avoid absurd results should be adopted - When the object or policy of a statute can be ascertained, imprecision in its language not to be allowed in the way of adopting a reasonable construction which avoids absurdities and incongruities and carries out the object or policy.
29. Accordingly, the provisions contained in Sub Rule (3) of Rule 8 should be construed harmoniously to make it effective after taking into account the other rules as well as the purpose and object of the rule.
30. Under Sub Rule (3) of Rule 19, it has been provided that if the appointments are made in respect of any one selection, names shall be arranged in accordance with the cyclic order referred to in Rule 18. It means a roster shall be provided in terms of rule 18 in the cadre of Assistant consolidation Officer containing direct recruits and promotees. Since 1991 Seniority Rules have got overriding effect, so far as seniority is concerned, roster shall be in accordance with Sub Rule (3) of Rule 8(supra). In case the number of candidates are not available to apply roster for each and every person selected through direct recruitment and promotion, then remaining may be placed in block at appropriate place in the seniority list.
31. In the State of Uttaranchal and another versus Dinesh Kumar Sharma (2007)1 SCC 683, Hon. Supreme Court ruled that the seniority should be reckoned from the date of substantive appointment and not from the date of occurrence of vacancy. The provisions contained in the Rules cannot be ignored. While dealing with the matter with regard to Service Rules of U.P. Agriculture Group B, their Lordships further held that there can be no automatic appointment /promotion on mere recommendation of PSC unless Government sanctions such appointment/promotion.
32. While submitting rejoinder affidavit to the counter affidavit filed by opposite parties 1 to 3, it has been submitted by learned counsel for the petitioners that the principle of date of appointment is not applicable to the facts and circumstances of the present case, on the proposition that date of substantive appointment for considering the criteria for fixation of the seniority is to be understood in the light of the definition of substantive appointment as given in the U.P. Government Servant Seniority Rules, 1991. The seniority rules define substantive appointment to be an appointment not being an ad-hoc appointment, on a post in the cadre of service made after selection in accordance with service rules relating to that service.
33. Respondent no.5 has submitted that answering respondents were initially appointed on 28.09.1997 on the post of Commercial Tax Officer on the basis of recommendation of U.P. Public Service Commission and were promoted on the post of Assistant Commissioner, Commercial Tax on 28.07.2010 and placed in the seniority list which has been prepared inconsonance with U.P. Sales Tax Service Rules, 1983 as well as the Seniority Rules, 1991. Rule 8(1) of the Seniority Rules envisages the procedure for determination of the seniority where appointments are made by two sources, by way of direct recruitment or by way of promotion, as contained in Rule 5(a) (i) and (ii) of 1983 Rules. Rule 8(1) of the Seniority Rules, 1991, provides that where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order. The officers whose date of substantive appointment on the post of Assistant Commissioner, Commercial Tax is earlier have been placed over and above the persons whose date of substantive appointment is later.
34. Learned counsel for the petitioners has submitted that the seniority list prepared by the respondents should be in cyclic order as provided in Rule 18 of the Service Rules but this is applicable only in the case where the appointment of both the cadres is made as a result of single selection. The provision ''result of anyone selection' as contained in Rule 8(3), signifies that the requisition for both direct recruitment and for promotion must have been sent to the Public Service Commission in the same recruitment year and selection on the basis of such requisition should also be made and completed in the same year of recruitment. Where the process of recruitment/appointment was not as a result of single selection, it would be very difficult to apply Rule 18 of the Service Rules.
35. If we consider Rule 18 then it is contained in Part V of the Service Rules which provides the procedure for recruitment. This Chapter is meant for determination of vacancies and procedure for direct recruitment or procedure for recruitment by promotion and preparation of combined select list. Chapter VI deals with the appointment, probation, confirmation, selection grade and seniority. Reading of the heading of the Chapter makes it clear that Chapter V is applicable for calculation of vacancies and procedure for recruitment as well. Chapter VI starts from the provision of appointment as contained in Rule 19. Rule 22 provides mode of determination of seniority. Further Rule 18 does not govern the determination of seniority. In the State of U.P. the rule applicable for determination of seniority in all services is contained in the Seniority Rules, 1991. If reliance is place on Rule 18 to construe it as a rule governing the determination of seniority then such reliance would be misinterpretation because Rule 18 expressly overruled by Rule 3 of 1991 rules and further officers of both the cadres, not having been appointed as a result of one selection, there cannot be any requirement in law to arrange their names in cyclic order in the seniority list.
36. It is settled proposition of law that seniority cannot relate back that too a period when the incumbent was not even borne in service cadre. The seniority cannot be reckoned or determined from the date of occurrence of vacancy or given retrospectively and for determination of inter-se seniority, the date of entry in a particular service or the date of substantive appointment is the safest criteria for fixing the seniority in respect of the officers recruited and selected from different sources.
37. During the course of argument and with the consensus of learned counsel for the parties certain questions were framed and given to the learned counsel for the parties to reply so that the discussion and the controversy may be easily settled.
38. In the supplementary counter affidavit filed by opposite parties 1 to 3, it has been narrated that the method of selection through direct recruitment and selection through promotion are quite distinct and separate from each other. The selection of direct recruitment starts from the calculation of the vacancies in accordance with the provisions contained in Rule 14 of 1983 rules and it is sent to the Commission for making advertisement for inviting application from eligible candidates. It is based on holding a preliminary examination, main written examination and thereafter an interview. Further the Public Service Commission advertises the post a combined State level examination for number of posts which includes:-
Deputy Collector in U.P. Civil Services, Deputy Superintendent of Police in Police Services, Treasury Officer/Account Officer in U.P. Finance and Accounts Services, District Commandant Home Guards in Home Department, District Basic Education Officer and ADIOS in Education Department, District Cane Officer in Sugar Industries Department, Deputy Secretary in Housing, Urban Planning Department, Work Officer in Panchayat Raj Department, Assistant Account Officer in Treasury Department, Sub Registration in Registration Department, Trade Tax Officer in Trade Tax Department, District Minority Welfare Officer in Minority Welfare and Waqf Department, District Probation Officer in Women and Child Development Department, Assistant Prosecution Officer (Transport) in Transport Department, District Food Marketing Officer, Food & Civil Supplies Department, District Backward Class Welfare Officer in Backward Welfare Department, Nayab Tehsildar in Board of Revenue, Area Rationing Officer in Food & Civil Supplies Department, and Assistant Commissioner, Trade Tax Inst. Fin., Tax & Regn. Department.
In this way, the candidate who fill up the application is given an option regarding choice of the post in accordance to his preference while the procedure for promotion starts after the list of eligible candidates from the Department is sent to the Departmental Promotion Committee to examine the merit of the candidates. Since the matter of promotion is an intradepartmental proceeding is less time consuming. It has further been submitted that even after the select list is published by the Public Service Commission, the incumbent does not acquire any right of appointment unless he is found medically fit and his personal antecedents are verified by the police or intelligence agencies. The select list prepared by the Public Service Commission dated 03.12.2010 was sent by the Department of Personnel to the Department of Commercial Tax on 11.02.2011 and after completing necessary formalities, letters to different District Magistrates were issued to verify the antecedents and character of the candidates and names were sent to the Medical Board for examination and issue of medical fitness. The questions which were framed by the Court and were given for answer are reproduced along with their answers as under:-
Question No.1- As to whether from the date of application of this rule any list of appointment has been prepared or issued in accordance with rule 18.
Answer - The service rules were notified in the year 1983. It is stated that from the date of notification of service rules, no list of appointment has ever been prepared or issued in line or in accordance with the scheme of Rule 18.
Question No.2- As to whether date of appointment can be shifted from any other date resulting as no appointment of the date of the issue of the order and the consequence thereof regarding pay, salary and work done during the period.
Question No.3 - As to whether any subsequent order of appointment can be issued, nullifying the previous appointment.
Answer to question nos. 2 & 3 - It is respectfully submitted that so far as cases of direct recruitments are concerned, it is now well settled that date of appointment cannot be shifted/altered. Likewise in the matter of promotees, sometimes the anterior date of promotion is assigned/specified but in no case the date of appointment has ever been shifted or it can be shifted so as to assign any subsequent date of promotion/appointment. Even in the case of direct recruitment also subsequent date of appointment cannot be assigned. This has a plausible and prudent reason as also in as much as it will have adverse consequence on pay, salary, increments, period of working as also on all other ancillary matters, like seniority. This will create an anomaly also for the reason that if this exercise is done in respect of direct recruitments, their services will have more adverse impact, in as much as their birth date in cadre will be shifted and the period of working prior to such date will be completely washed away and in the matter of promotees also though they will be treated to have been working on feeding post from which they were promoted but this will lead to an anomaly that the promotees despite working on the higher post cannot legally claim any benefit from such working for the reason that their date of appointment has been shifted to a subsequent date. This being the reason, the date of appointment, it can be safely summed up, cannot be altered to the detriment for the personnel.
Question No.4 -Where it becomes impossible to adhere to the existing quota rule and the quota rule has not been followed continuously for a number of years because it was impossible to do so and inference may be drawn that the rule 18 had broken down.
Question No.7- Where rule 18 has broken down and the appointments are made after following the procedure prescribed by the rules for appointment, the appointees should not be pushed down below the appointees from the other source inducted in service at a later date.
Question No.9-As to whether presumption should be raised that there is a deviation from rule and are in practice since long.
Question No.10- As to whether appointment can be made in accordance with the recommendation made under rule 16 or 17 or 18 (from any of the list available to the appointing authority or only from the list which is prepared under rule 18).
Answer to Question nos.4, 7, 9 & 10-The four questions are inter connected with each other. It is now well settled that the Rules cannot be read and interpreted in the manner to lead to an absurdity and the only way of interpretation of Rules can be their workable and executable implementation not violating Article 14 and 16 of the Constitution of India. As already submitted, it was practically unreasonable and therefore impossible to follow the Rule 18, as if Rule 18 is followed as per the answer given to the question, a very anomalous situation would create and therefore, if Rule 18 and 19 are pressed into service in the manner as suggested by the petitioners it will lead to a chaos. If the process of selection through direct recruitment and promotion starts on the same day, it does not mean that it will also end on the same day or for that matter in the same year. Most of time in the matter of direct recruitment, the Commission consumes too much time, some times five years or more. In this situation where the promotees in respect of which selection process starts along with the aforesaid direct recruits cannot be legally permitted to wait or be permitted to officiate on promoted post for long period of time. Therefore, the appointees cannot be pushed down below the appointees of other source inducted in services at a later date. The safe and reasonable criteria is that even after notifying the vacancies as per quota, since the procedure of recruitment from 2 methods is quite distinct and separate from each other, it is respective date of induction in services that the appointees can claim in the matter of direct recruitment and it is date of promotion in the matter of promotees which they can claim. It can further be submitted that it is not the case of deviation from Rules rather it is a case of practicable and prudent applicability of rules.
Question No.5 - If the rule has been prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instructions have seized to remain operative.
Answer - It may be submitted that it is the rules which governs the field and not the executive instructions.
Question No.6 - As to whether procedure of appointment is one thing and determination of seniority is another thing and the seniority should be determined with reference to the date of their induction in service.
Answer - True it is that procedure of selection and procedure for appointment post selection and determination of seniority are three distinct phenomena and it is the reasonableness which qualifies the test of Articles 14 and 16 of the Constitution of India based on which the seniority has been determined with reference to the date of appointment/promotion.
Question No.8 - As to whether the year of vacancy is for calculation of vacancy in the cadre and the matter of determination of the seniority is to be determined in accordance with date of appointment and the date of induction in service.
Answer - It is submitted that the year of vacancy for calculation of vacancies in the cadre has nothing to be with the matter of determination of seniority. Suppose a direct recruit is appointed in 2017 against the vacancies of 2013 then determining further appointment will be the date of appointment and not the year of vacancies for the reason that person is borne in the cadre in the year 2017 itself. In the matter of promotees also unless in given case the appointment after promotion specifies a back date, year of vacancy has no role to play in the matter of determination of seniority. Thus, the year of vacancy is confined exclusively for calculation of vacancy in the cadre and it has nothing to do with the matter of determination of seniority. It is thus the date for appointment and date of induction in service which is the factor determining the seniority.
Question No.11 - What is the relevancy of principle that continuous length of service should be the criteria for inter-se seniority between two sources of appointments provided they possess the required qualification as contained in the rules and the appointment had been made under rule 16 or 17 after due consultation and approval of the competent authority.
Answer - In respect of this pertinent query, the submission is that it is length of service a particular post which emanates from the date of appointment/promotion is criteria for determining seniority or inter se seniority between the appointees coming from two sources.
Question No.12 - As to whether appointments made under Rule 16 or 17 can be held to be alien to the cadre.
Answer - The appointments made under Rule 16 or 17 are within the cadre being made on vacancies available in the cadre and not on any ex-cadre post and therefore appointments cannot be said to be alien to the cadre.
39. Learned counsel for the petitioners has submitted that during the preparation of previous seniority list Rule 18 was taken into account and the list was prepared in a cyclic order as per the provisions of Rule 18 but the respondents specifically the State of Uttar Pradesh and the Department have replied that since after the notification of the U.P. Sales Tax Service Rules, 1983, no combined select list of the candidates has ever been prepared or issued.
40. The rules called Uttar Pradesh Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 1970, are applicable to all services and posts in connection with the affairs of the Uttar Pradesh to which recruitment by promotion is required to be made by selection in consultation with the U.P. Public Service Commission, otherwise than on the results of a competitive examination. Rule 5 of the aforesaid rules provides criteria for promotion based on either strict merit or primarily on merit or strictly on merit or seniority counting where merits are equal. There is a provision of preparation of eligibility list in accordance to rule 8 and this list is sent to the Commission in accordance to rule 9 and the Commission examines the eligibility list and after the decision of the Selection Committee, the select list is prepared and after consideration of the Commission and approval letter of appointment is issued in accordance to rule 17.
41. Learned counsel for the petitioners has submitted that Rule 22 which governs the seniority refers to appointment in accordance to rules and seniority of the officers appointed to the service shall be determined in accordance with the order of their appointment and that too in accordance with the provisions as contained in Rule 18 i.e. in the cyclic order while learned counsel for the State has submitted that the system as contained in Rule 18 makes it abundantly clear that Rule 18 is a procedure for recruitment of the suitable candidates and it is meant for recruitment to the service from various sources. It has further been submitted that if the seniority is to be determined in accordance to Rule 18 then Rules 21 and 22 will become redundant. The plain language of Rule 22 speaks regarding determination of seniority of members of the service in accordance with the order of their appointment and not as per the roaster points enumerated in Rule 18. The expression in accordance with the order of their appointment to the service refers to the point of time when the officers are appointed and not its slot allotted to them under Rule 18. Meaning thereby the candidates appointed earlier in point of time will rank senior to others who are appointed subsequently. Reliance has been placed on (2006) 6 SCC 673 - Arvinder Singh Bains vs. State of Punjab and others.
42. In the case of Roshan Lal Tandaon vs. Union of India - AIR 1967 SC 1889, it was held that it is the length of actual service that must be the determining factor in the matter of promotion and consequential seniority.
43. In Direct Recruit Class II Engg. Officers' Assn. vs. State of Maharashtra - (1990) 2 SCC 715, it was held that the rules fixing the quota of the appointees from two sources are meant to be followed. But if it becomes impractical to act upon it, it is no use insisting that the authorities must continue to give effect to it. There is no sense in asking the performance of something which has become impossible...............in such a situation, the rule should be appropriately amended so that the scope for unnecessary controversy is eliminated.
44. In Arvinder Singh Bains vs. State of Punjab and others - (2006) 6 SCC 673, the ratio as laid down by the Court was as under:-
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to, the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised, that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
45. The view of the Court may be considered in light of H.C. Mathur (Dr.) v. State of U.P. - 1991 Lab IC 1846 (All.) and Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25 where in Paragraph 20 it was held that in service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be 'stopgap or fortuitous or purely ad hoc.
46. The case of Bhupendra Nath Hazarika and another v. State of Assam and others - (2013) 2 SCC 516 deals with regular batch or direct recruitment, vis-a-vis special batch where it was held that appointment of candidates belonging to special batch would not entitle to seniority over regular batch.
47. The facts of the present case differ from the case mentioned in Bhupendra Nath Hazarika's case.
48. It is argued on behalf of the petitioners that the seniority of ad-hoc appointees will be considered from the date of substantive appointment but it is matter to be discussed as to whether the appointment of the respondents is ad-hoc or a regular appointment in accordance with procedure as provided in the appointment rules and once an incumbent is appointed to a post according to rules his seniority has to be counted from the date of his appointment and not according to the date of his confirmation as laid down in Direct Recruits case. The same effect is also applicable to the case of the petitioners because their services are also kept under probation and after a certain period of service as provided in Rule 20 their services are confirmed in accordance with Rule 21 of the Service Rules. While dealing the case of State of West Bengal v. Aghore Nath Dey- (1993) 3 SCC 371, it was held as under:-
"13......We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."
49. Learned counsel for the respondents has relied upon the case of Prafulla Kumar Swain v. Prakash Chandra Misra and others - 1993 Supp. (3) SCC 181, where it was held that services will be counted from the date of appointment to the service.
"38. The gradation list has been in operation over several years. We see no reason to unsettle the settled position. In this behalf we draw support from the judgment of this Court In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. We may also note that though the same question was before this Court a little before the petition was made by respondent I before the Tribunal, no effort was made by respondent 1 to intervene and place before this Court his point of view. It is inconceivable that he would not have known that the same question was before this Court."
50. In Jagdish Chandra Patnaik v. State of Orissa - (1998) 4 SCC 456, it was held that year of vacancy has no relevance with the determination of seniority of the officers in case of direct recruits. The process of recruitment starts with the invitation of application by the Commission and in case of promotion, it starts with the nomination of preparation of eligibility list and until final selection is made by the Government or appropriate appointment orders are passed thereon no person can be said to have been recruited to the service.
51. In Bimlesh Tanwar v. State of Haryana and others - AIR 20003 SC 2000, it was held that determination of seniority should be based on basis of merit in terms of merit list or on the basis of date of joining of the post.
52. Hon'ble the Apex Court while deciding the case of B.S. Mathur and another v. Union of India and others - (2008) 10 SCC 271, held that where there is a break down of Rule 18 in the service, determination of inter-se seniority by applying the principle of continuous length of the service in accordance with seniority rules is proper procedure. A perusal of the seniority list shows that rota quota remains broken down even today. It may be pertinent to mention that steps for appointment of direct recruitment through Public Service Commission were actually taken by the respondent State many years before their appointment actually took place but the appointment came in place only after considerable delay. Though as per law the direct recruits cannot be blamed or faulted for the delay because in their appointments, the fact remains that delay in appointment should not cause any disadvantage to the incumbents appointed in the service and the service shall be deemed to be continued from the date of their appointment. The chart submitted by the learned Standing Counsel shows that rota quota has remained broken down right from inception of service till now.
53. Further it has to be kept into consideration that seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises.
54. As contended by learned counsel for the respondents that the seniority list prepared on the basis of the principle of continuous length of service clearly demonstrates that in case the seniority of the officers is fixed by reference to their date of appointment, then nobody would suffer any injustice. Each and every officer would get due weightage of the service rendered by him or her in the cadre. If inter-se seniority is finally decided by applying the principle of continuous length of service, it may bring an end to litigation between the officers of two groups. Therefore, the principle of continuous length of service should be applied for determining the inter-se seniority of the officers. (R.K. Sabharwal and others v. State of Punjab - MANU/SC/0259/1995)
55. In Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25, it was held that the seniority of the officers should be decided on the basis of continuous length of service.
56. The best solution to the situation is to have continuous officiation against the sanctioned and available vacancies ought to receive due recognition in fixing the seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. It was also held that since rule of quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously on the posts created in the service.
57. Learned counsel for the respondents has submitted that even the recruitment of the respondents have been made in accordance with the procedure of recruitment rules and after due consultation and/or approval of the competent authority and the incumbents were duly qualified for being promoted, the appointment cannot be said to be ad-hoc appointments or stopgap arrangement.
58. It has been argued that the appointment of the respondents is within the category of ad-hoc appointment. But perusal of the submissions made by the parties and the condition of appointment reveal that it is not a case of ad-hoc appointment. The respondents were eligible to be promoted on the post and they were considered by the competent committee and after due approval of the competent authority they were promoted on the substantive posts. Thus, their appointments can never be said to be ad-hoc appointments.
59. The three terms 'ad hoc', 'stop gap' and 'fortuitous' are in frequent use in Service Jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the competent authority and the appointee possesses the prescribed qualification for such appointment provided in Rule and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law dictionary, the expression "fortuitous" means "occurring by chance", '"a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only, by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stop-gap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need".
60. In Oxford Dictionary, the word 'ad hoc' means for a particular purpose; specially. In the same Dictionary, the word 'fortuitous' means happening by accident or chance rather than design.
61. In P. Ramanatha Aiyer's Law Lexicon (2nd Edition) the word 'ad hoc' is described as "for particular purpose, made, established, acting or concerned with a particular and or purpose'. The meaning of word 'fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God'.
62. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding Cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made without applying the procedure of appointment then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter-se seniority of officers in the Cadre.
63. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which, the appointment of the officers promoted in the service in the case in hand was argued to be 'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
64. The question that the direct recruits should be alloted vacancy of the year has been replied in Suraj Prakash Gupta and others v. State of J & K - MANU/SC/0337/2000 in paragraphs 81 and 82 as under:-
"81. We have next to refer to one other contention raised by the respondents-direct recruits. They claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under direct recruitment quota.
82. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat- [1977]1SCR1037 Krishna Iyer, J. stated:
later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India - (1983)IILLJ175SC it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secretary to the Government - (1987)IILLJ140SC at p. 767 that slots cannot be kept reserved for the direct recruits for retrospective appointments."
65. In S.B. Patwardhan Vs. State of Maharastra, AIR 1977 SC 2051, the Apex Court held that the period of continuous officiation in government service, after appointment of an employee by following the Rules applicable for substantive appointment has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the available eligible candidates and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal, which would violate the equality clause. If the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly and basic appointment was in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority.
66. Same view has been reiterated in Baleshwar Dass & Ors. Vs. State of U.P. & Ors., AIR 1981 SC 41; and Delhi Water Supply and Sewage Disposal Committee & Ors. Vs. R.K. Kashyap, AIR 1989 SC 278.
67. In Narendra Chadha Vs. Union of India & Ors., AIR 1986 SC 638, the Hon'ble Supreme Court examined the case of officers promoted without following any procedure prescribed under the Rules but had continuously worked for 15-20 years on the posts without being reverted. The Court directed for counting the said officiating period for seniority observing that any other view would be arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution. The Court observed as under:-
"......But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results............... where there is no dispute regarding the entry of the officers concerned into the same Grade."
68. It is evident from the above observation that in that case, the direct recruit had not raised any dispute regarding the entry of the promotees and the government was enclothed by the applicable relevant Service Rules to relax any of the service conditions and the promotees had worked for 15-20 years with due deliberations, after consulting competent authority. The Court held that service conditions stood relaxed impliedly.
69. In S.G. Jaisinghani Vs. Union of India, AIR 1967 SC 1427; A.K. Subraman Vs. Union of India, AIR 1975 SC 483; Paramjit Singh Sandhu Vs. Ram Rakha, AIR 1979 SC 1073; A. Janardhana Vs. Union of India, AIR 1983 SC 769; O.P. Singla & Anr. Vs. Union of India & Ors., AIR 1984 SC 1595; and G.S. Lamba & Ors. Vs. Union of India & Ors., AIR 1985 SC 1019, the Apex Court held that if the quota rule is applicable and for some reasons the quota could not be strictly adhered to and the persons so appointed continuously worked for a long time, those promotees cannot be pushed down in the seniority list on availability of the direct recruits.
70. The facts of the present case reveal that the appointment of the respondents are in accordance with the procedure as prescribed in the service rules.
71. Subsequently, in N.K. Chauhan Vs. State of Gujarat, AIR 1977 SC 251, the Hon'ble Supreme Court held that if it becomes non-feasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it could promote suitable persons in case of compelling circumstances, as public interest does not warrant that improvement work should suffer on account of non-availability of suitable candidates for nomination. In such a case, if the Rules or executive instructions could not be carried out for good reasons, then persons working on promotional post were entitled to reckon the seniority by including the officiating period.
72. A Constitution Bench of the Supreme Court in the case of Direct Recruit Engineer's case, considered whether the ad hoc service followed by regular service could be counted for the purposes of seniority and in this context the Supreme Court observed in paragraph 44 as follows:-
"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted."
Under category (A) it has been expressly provided that where the initial appointment is not according to rule but is only ad hoc and made as a stop-gap arrangement, the period of officiation on such post cannot be counted for the purpose of seniority.
73. In Keshav Chandra Joshi & Ors. Vs. Union of India & Ors., AIR 1991 SC 284, the Hon'ble Supreme Court explained the scope of proposition "B" in Direct Recruit Class II Engineers (supra) observing as under:-
"Propositions ''A' and ''B' cover different aspects of one situation. One must discern the difference critically. Proposition ''B' must, therefore, be read along with para 13 of the judgment wherein the ratio decidendi of Narendra Chadha was held to have considerable for. The latter postulated that if the initial appointment to a substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to 20 years without reversion and still the date of regularisation of the service in accordance with the rules the period of officiating service has to be counted towards seniority. This Court in Narendra Chadha's case was cognizant of the fact that the rules empower the Government to relax the rule of appointment. Without reading paragraph 13 and Proposition ''B' and Chadha's ratio together the true import of the proposition would not be appreciated................ If the concerned rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner."
The Court also held that the appointment must be in substantive capacity and according to the Rules and within the quota of a substantive vacancy as there is a marked distinction between the appointment in substantive capacity and appointment to the substantive post. The officiation to post must be by an order of appointment and if the appointment on the post is validly made by the competent authority then only an employee becomes a member of the service. If the regularisation of an employee is not in accordance with the statutory provisions, officiation will not be reckoned for the purpose of seniority or promotion.
74. In Para 13 of the Direct Recruit Engineer's case, the Court had approved the ratio of S.B. Patwardhan's (supra) that principle of determining the inter se seniority has to be consistent with the mandate of Articles 14 and 16 of the Constitution. An employee appointed on a stop-gap arrangement without following the procedure prescribed by law cannot claim the benefit of the period of officiation for the purpose of seniority or promotion.
75. In State of West Bengal & Ors. Vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371, the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit case observing as under:-
"There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ''according to rules'. The corollary set out in conclusion (A), then is, that ''where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority...............We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
In our opinion, the conclusion (B) was added to cover a different kind of situation wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ''if the initial appointment is not made by following the procedure laid down by the ''rules' and the latter expression ''till the regularization of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements, of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules........"
76. Similar view has been reiterated in U.P. Secretariat U.D.A. Association Vs. State of U.P. & Ors., JT 1997 (2) SC 461.
77. It has, therefore, to be ascertained from the facts of each case as to whether the case of the petitioners will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in the case of Direct Recruit Engineer's case.
78. The Supreme Court in the case of Masood Akhtar Khan Vs. State of M.P., (1990) 4 SCC 24; Excise Commissioner, Karnataka & Ors. Vs. V. Sreekanta, 1993 Supp. (3) SCC 53; Anuradha Bodi (Dr.) Vs. Municipal Corpn. of Delhi, (1998) 5 SCC 293; Keshav Deo Vs. State of U.P., (1999) 1 SCC 280; L. Chandrakishore Singh Vs. State of Manipur, (1999) 8 SCC 287; T. Vijayan & Ors. Vs. Divisional Railway Manager & Ors., AIR 2000 sc 1766; State of Bihar Vs. Kameshwar Prasad Singh, AIR 2000 SC 2306; and Santosh Kumar & Ors Vs. G.R. Chawla & Ors., AIR 2003 SC 3304, after considering the Constitution Bench decision in Direct Recruit Engineer's case, held that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
79. In Syed Khalid Rizvi & Ors. Vs. Union of India & Ors., 1993 Supp (3) SCC 575, the Apex Court while resolving the dispute of seniority between promotees and direct recruits in Indian Police Service, held that as determination of seniority has been interlinked with the recruitment of the promotee officers to the Indian Police Service, to satisfactorily solve the problem, the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.
80. It was so held observing that seniority, though normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the IPS by promotion, which should be strictly complied with before becoming eligible for consideration for promotion, and are not relaxable. In absence of the Rules, ordinarily the length of service is taken into account.
81. Similar view has been reiterated in A.K. Bhatnagar & Ors. Vs. Union of India & Ors. (1991) 1 SCC 544; Indian Administrative Service (SCS), Association U.P. & Ors. Vs. Union of India & Ors., 1993 Supp (1) SCC 730; and Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors., (2003) 11 SCC 614, observing that seniority is an incidence of service and when rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion.
82. In Dr. M.A. Haque & Ors. Vs. Union of India & Ors., (1993) 2 SCC 213, the Supreme Court held that expression used by the Constitution Bench in Direct Recruit Engineer's case means "the Rules of recruitment and not the special procedure laid down by the Court". Therefore, the Apex Court emphasized that a case has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise.
83. In Md. Israils & Ors. Vs. State of West Bengal & Ors., AIR 2002 Sc 468, the Hon'ble Apex Court reiterated the same view and while deciding the case, reliance had also been placed upon the earlier judgments in Suraj Parkash Gupta Vs. State of J & K, AIR 2000 SC 2386; and M.K. Shanmugam Vs. Union of India, AIR 2000 SC 2704 wherein it has been held that the particular statutory Rules governing the services of an employee have to be kept in mind and in case the promotion was in accordance with the said Rules, reckoning the period of officiation for the purpose of seniority and promotion would not be questioned. The Court must also examine as to whether the authority had a power to grant relaxation under the said Rules and if relaxation is so granted, it should be in accordance with the said Rules.
84. Learned counsel for the petitioners has submitted that in light of the above reasons it requires relaxation by the competent authority and in case there is no relaxation the appointment of the respondents can be said to be within the purview of appointment dehors the rules. Here is not the case of non-compliance of the statutory rules. The appointment of the respondents was in accordance with rules prescribed in the service rules and after the decision of the Departmental Promotion Committee the appointment letter was issued by the competent authority after due approval. Thus, the grant of relaxation of any condition was not required while issuing appointment order to the respondents.
85. In P.N. Premchandran Vs. State of Kerala & Ors., (2004) 1 SCC 245, the Apex Court held that if there is a lapse on the part of the employer-authority in making the regular promotions, though ad hoc promotion had been given earlier, the benefit of officiating period is to be given by making the promotions with a back date unless the officer can be blamed for the delay.
86. Reference may also be made to the decisions of the Supreme Court in the case of Union of India Vs. Joginder Sharma reported in JT 2002 (7) SC 425 and in the case of State of Mizoram and another Vs. Mizoram Engineering Service Association and another reported in (2004) 6 SCC 218 wherein the Supreme Court has clearly held that even in the absence of statutory Rules the ad hoc appointments have to be made in consonance with the provisions of Articles 14 and 16 of the Constitution of India.
87. Thus, the law stands crystallized that a person appointed on ad hoc basis on a post de hors the Rules or without following any procedure prescribed by law, cannot claim the benefit of reckoning the period of service rendered by him as such for the purpose of seniority or promotion. The case of an individual person claiming such a relief is to be examined in the light of the propositions ''A' and ''B' propounded by the Hon'ble Apex Court in Direct Recruit Engineers' case reading it along with the explanation given in paragraph 13 of the said judgment, as also explained subsequently by the Hon'ble Apex Court time and again in Keshav Chandra Joshi and others (supra) and Aghore Nath Dey and others (supra). The appointment should be made after considering the suitability of all eligible candidates in strict compliance of the statutory Rules. A minor deficiency in following the procedure prescribed under the Rules, may be ignored but, if the appointment is to be made in consultation with the competent authority, such a deficiency cannot be ignored as the appointment itself would be de hors the Rules. Where the quota Rule could not be complied with for some compelling circumstances and appointments have been made with due deliberation and in accordance with rules and appointees continue for a very long period without any interruption, benefit of such a period is permissible and such appointment does not come within the category of ad-hoc appointment.
88. It has further been submitted by learned State counsel that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his right and acquiesces into the situation, his writ petition cannot be heard after a lapse of years.
89. A Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shanker Deodhar & ors. Vs. State of Maharashtra & ors., AIR 1974 SC 259, considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. While deciding the said case, the Apex Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reasons of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
90. The Apex Court also placed reliance upon its earlier judgment in R.N. Bose Vs. Union of India & ors., AIR 1970 SC 470, wherein it has been observed as under:-
"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
91. In R.S. Makashi Vs. I.M. Menon & ors., AIR 1982 SC 101, the Apex Court considered the entire aspect of limitation, delay and laches in filing the writ petition. The Court also referred to its earlier judgment in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court further considered the issue and held as under:-
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years...... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the court with the challenge against the seniority principles laid down in the Government Resolution of 1968..... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government Resolution, should have been dismissed."
92. The issue of challenging the existing seniority list, which continued to be in existence for a long time, was again considered by the Hon'ble Apex Court in K.R. Mudgal & ors. Vs. R.P. Singh & ors., AIR 1986 SC 2086 and the Apex Court held as under:-
"Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.......In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."
93. While deciding the case, the Apex Court placed reliance upon its earlier judgment in Melcom Lawrance Cecil D'Souza Vs. Union of India & ors., AIR 1975 SC 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
94. In B.S. Bajwa Vs. State of Punjab & ors., (1998) 2 SCC 523, the Hon'ble Apex Court has taken the same view, observing as under:-
"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition."
95. In Dinikar Anna Patil & Anr. Vs. State of Maharashtra, (1999) 1 SCC 353, the Hon'ble Supreme Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the court regarding delay, the case may be considered.
96. In K.A. Abdul Majeed Vs. State of Kerala & ors., (2001) 6 SCC 294, the Hon'ble Supreme Court held that seniority assigned to any employee could not be challenged after a lapse of seven years; though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
97. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. (Vide Aflatoon & ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077; State of Mysore Vs. V.K. Kangan & ors., AIR 1975 SC 2190; Pt. Girdharan Prasad Missir Vs. State of Bihar & ors., (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union ofIndia, AIR 1992 SC 1414; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; Ram Chand Vs. Union of India, (1994) 1 SCC 44; State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. (P) Ltd. & ors., (1996) 11 SCC 501; Padma Vs. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SCC 627; Hindustan Petroleum Corp. Ltd. Vs. Dolly Das, (1999) 4 SCC 450; Life Insurance Corporation of India Vs. Jyotish Chandra Biswas, (2000) 6 SCC 562; L. Muthu Kumar & Anr. Vs. State of Tamil Nadu & ors., (2000) 7 SCC 618; Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & ors., AIR 2000 SC 671; and Inder Jit Gupta Vs. Union of India & ors., (2001) 6 SCC 637.
98. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:-
"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."
99. Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."
100. In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystallized.
101. In Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.
102. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) "The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
103. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows:
"9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
104. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
105. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395):
"12......In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
106. Since we have heard the matter on merit at length, we feel it appropriate to decide the matter on merit considering the relevant facts as narrated above.
Rule 4(h) defines 'substantive appointment' as an appointment, not being an ad-hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups what is relevant is the date of the order of their substantive appointment and appointees of much prior in point of time, must rank senior to the latter appointees.
107. In Ram Janam Singh v. State of U.P. and Anr. - (1994) 2 SCC 622 , Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309.
108. A two-Judge Bench of the Court in Jagdish Ch. Patnaik - (1998) 4 SCC 456, while construing the word 'recruited' occurring in Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what the Court said:
34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the intervenors, to the effect that the expressions "recruitment" and "appointment" have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression "recruited" it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the rule-makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression "recruited" should be interpreted to mean when the selection process really started. That apart the said expression "recruited" applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule....
109. The Court emphasized in the case of Uttaranchal Forest Rangers' Association that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. - (1991 (suppl.) 1 SCC 334 and Jagdish Ch. Patnaik - (1998) 4 SCC 456.
110. In the case of Dinesh Kumar Sharma , the Court was concerned with U.P. Agriculture Group 'B' Service Rules, 1995 and the 1991 Rules. With reference to Rule 8 of the 1991 Rules, the Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy.
111. The Constitution Bench of Apex Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715 stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The legal position with regard to determination of seniority in service was summarized by the Apex Court as follows:
"(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.
112. Now, in case the seniority between the appellants and the first Respondent is to be determined outside the 1991 Rules, one has to go to the basic principles for determination of seniority. One cardinal principle for determination of seniority is that unless provided for in the rules, seniority can not relate back to a period prior to the date of the incumbent's birth in the service/cadre.
113. To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J & K - (2000) 7 SCC 561. The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of ante-dating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In paragraph 18 of the decision (at page 578 of the SCC) the Court framed one of the points arising for consideration in the case as follows:
"(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?"
The Court answered the question in the following terms:
"Point 4:
Direct recruits cannot claim appointment from date of vacancy in quota before their selection.
80. We have next to refer to one other contention raised by the Respondent-direct recruits. They claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.
81. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat - (1977) 1 SCC 308, Krishna Iyer, J. stated:
Later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India-(1983) 3 SCC 601, it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secretary to the Government - 1987 Supp SCC 763 that slots cannot be kept reserved for the direct recruits for retrospective appointments."
114. The latest pronouncement of Hon'ble the Apex Court decided on 14.02.2017 is Union of India and others v. N.c. Murali and others - MANU/SC/0302/2017, which provides better procedure to be adopted at the time of promotion from two sources. Relevant paragraphs are quoted below:-
"10. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava (supra) reported in - (2014) 14 SCC 730 in which Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows:
24. The learned Senior Counsel for the Appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh - (2011) 3 SCC 267 : (2011) 1 SCC (L & S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp. 281-82, para 45)
45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
XXX XXX XXX
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
11. Learned Counsel appearing for the Appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and Ors. and connected matter reported in - (2008) 14 SCC 29. Paragraph 7 of the judgment reads as follows:
7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera -1989 Supp. (2) SCC 625 : 1990 SCC (L & S) 127, State of Uttaranchal v. Dinesh Kumar Sharma - (2007) 1 SCC 683 : (2007) 1 SCC (L & S) 594, K.V. Subba Rao v. Govt. of A.P. - (1988) 2 SCC 201 : 1988 SCC (L & S) 506 : (1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar -(2004) 10 SCC 734 : 2005 SCC (L & S) 169 etc."
115. In light of above guidelines the settled provisions are that the seniority shall be counted from the date of actual appointment and not from the vacancy.
116. Much emphasis has been given by learned counsel arguing on behalf of the direct recruits of Rule 18 and it has been submitted that Rule 18 is mandatory and without preparing the list in a cyclic manner no appointment can be made from the list. The submission of the learned counsel is not tenable on the following grounds:-
I. The opening sentence of Rule 18 starts "if in any year of combined recruitment...." which means that law makers were fully aware of the fact that appointment on the basis of list prepared under Rules 15, 16 or 17 is hardly possible and that is why the sentence starts with the word "if" which denotes that if any case such recruitment is made then the list be prepared accordingly. It expresses that Rule 18 is neither mandatory nor rule of appointment. It is an internal procedure.
II. Rule 18 is meant for, "that the prescribed percentage is maintained" - the Rule provides the maintenance of such a list to ascertain the percentage of two categories.
III. Such list is required only when "if in any year of recruitment" which denotes that the year of recruitment must be same for the preparation of such list for maintaining the percentage of the cadre.
IV. Rule 19 provides that "appointing authority shall make appointment by taking the names of the candidates in the order in which they stand in the list prepared under Rules 15, 16, 17 or 18" - it means appointment can be made from any of the list available before the appointing authority.
V. Rule 19(2) provides for preparation of combined list in accordance with Rule 18 when in any year, recruitment are to be made both by direct recruitment and by promotion. Here is not the case where appointment was made relating to the vacancy of one recruitment year.
VI. Rule 18 is applicable when procedure of appointment is the same and recommendation is sent by the same authority to the appointing authority by means of one selection process. The facts in the present case are not within the category of recruitment in one selection process.
VII. Rule 19(3) provides to issue the order of appointment in the order "as it stood in the cadre from which they are promoted".
117. Learned counsel for the petitioners in Writ Petition No.19231 (SB) of 2016 has submitted that the appointment made through promotion shall be deemed to be ad-hoc promotion and be held as such by this Court on the ground of Rule 19(4) but the contention of the learned counsel is not tenable on the ground that temporary or officiating appointment can be made only when no candidate borne on these lists is available. Here in these petitions there is no case that no list is available from either Rule 15 or 16 or no procedure has been adopted. List from Rules 15, 16 or 17 was available before the appointing authority at the time of issue of order of appointment and there was no need to make any temporary or officiating appointment. There is not the case of the State Government or the Public Service Commission that they had made ad-hoc appointment or there is nothing in the order of appointment that the appointment of the respondents was in the officiating capacity. In these circumstances, presumption or inference cannot be drawn by means of interpretation of Rule 18 that the appointments so made may be held to be officiating or temporary in nature. The contention of the petitioners that the appointment of the respondents are dehors the rules and thus be held as such is not based on any sound ground. It is contented on the basis of inference and presumption that since the list has not been prepared in accordance with Rule 18, the appointments of the respondents shall be held to be officiating in nature.
118. This Court is not going to legalize the illegalities committed by the authorities. We have to examine as to whether while making the appointment of the petitioners or respondents the appointing authority has followed the procedure of appointment or not. The appointment of the petitioners was based on calculation of the vacancies, sending the names to the Public Service Commission, advertisement, competitive examination and thereafter preparation of merit list and recommending the names of suitable meritorious candidates according to their choice to the State Government and after medical fitness certified by the Medical Board and police verification the appointment orders were issued. Thus, the procedure as laid down in Rule 15 while recruiting the posts was applied and complied. Similarly, while making appointments under Rule 16 by way of promotion the eligibility list was prepared by the department concerned and it was sent to the Departmental Promotion Committee and after scrutinizing, the matter was finalized on the basis of merit with the consultation of the Public Service Commission and thereafter it was sent to the appointing authority and the order of appointment was issued. In this way, the procedure for appointment was followed and it cannot be said that the appointment so made was dehors the rules. In the matter of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715, Hon'ble the Apex Court has divided it in two categories, (1) appointment made in accordance with the procedure as laid down in the service rules, and (2) appointment dehors the rules (without applying the procedure of service rules). It is accepted case that appointments do not come within the category of appointment of category (2). The appointment was made in accordance with the appointment rules and the same was recommended to the appointing authority and the appointing authority has issued appointment letter without any condition that the appointment was of any officiating capacity. None has challenged the validity of the appointment. Thus, we cannot consider this point on the basis of argument that the appointment is dehors the rules unless and until the appointment of the respondents is challenged.
119. If the appointment of the respondents is challenged on the ground that the list while making appointment of the respondents was not in accordance with Rule 18 then it is equally applicable to the case of the petitioners also because while making the appointment of the petitioners the list was not in accordance with Rule 18. If the contention of the petitioners is taken into account that without preparation of list under Rule 18, no appointment can be made or it is illegal appointment then in these circumstances the appointment of both categories will go and this is not the case of either of the parties. Since there is no challenge of the appointment, it does not require any discussion.
120. Rule 22 determining the seniority provides that the seniority of the person in any category of posts shall be determined from the date of order of substantive appointment and further if two or more persons are appointed together, by the order in which their names are arranged in the appointment order, the proviso to Rule 22(2) provides that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. This provision makes it clear that the intention of the rule maker was that the seniority shall be determined from the date of order of appointment.
121. It is argued on behalf of the respondents that the year of vacancy against which a particular person is appointed is wholly irrelevant for the purpose of determination of seniority and seniority cannot relate back to the date of vacancy. It is unreasonable and bad in law in the interest of justice. It would not be proper to unsettle a settled position. In Ram Janam Singh v. State of U.P. and Anr (supra), it was held that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors.(supra), the legal position has been settled with regard to inter-se seniority and it was stated that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment. In A. Janardhana v. Union of India-(1983) 3 SCC 601, it was held that no one can claim seniority from a date before his birth in the service. Similarly, in A.N. Pathak v. Secretary to the Government - 1987 Supp SCC 763, it was held that slots cannot be kept reserved. The latest pronouncement in Pawan Pratap Singh v. Reevan Singh - (2011) 3 SCC 267, it was held that the date of entry in a particular service is the safest criteria for fixing the seniority.
122. In a latest decision of Hon'ble the Apex Court in Union of India v. N.C. Murali decided on 14.02.2017 and reported in MANU/SC/0302/2017, it was held that the date of entry in a particular service is the safest criterion for fixing seniority inter-se between two group of officers. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. While discussing so many law points and decisions of Hon'ble the Apex Court, as discussed above, it was held and finally settled that the right of appointment/promotion does not crystallize on the date of occurrence of vacancy. Promotion is to be given effect to from the date when it is actually effected (except in the cases of sealed cover procedure).
123. If we examine the relevant seniority of the petitioners as well as the respondents, it would be better to examine the chart prepared by the respondents while placing their seniority in different batches, which is quoted below:-
vflLVsUV dfe'uj lh/kh HkrhZ CHART A - RULE 5 (a)(i) dze la[;k lh/kh HkrhZ dh fjfDr dh la[;k fjfDr o"kZ cSp@ vf/k;kpu izsf"kr dk i= la[;k o fnukad vk;ksx }kjk ijh{kk djkdj vafre :i ls dkfeZd foHkkx ds ek/;e ls izkIr ifj.kke 'ks"k vf/kdkfj;ksa dh la[;k EkSfyd fu;qfDr dh frfFk T;s"Brk dzekad 1- 16 2006&07 2007 cSp 566@29-12-06 19-05-2010 12 24-12-2010 ls 30-03-2011 2212 ls 2223 2- 65 2007&08 2008 cSp 242@09-07-08 11-02-2011 57 27-07-2011 ls 16-05-2013 2224 ls 2280 3- 134 2008&09 2009 cSp 700@30-01-09 31-05-2012 123 31-08-2012 ls 28-01-2012 2363 ls 2486 4- 37 2009&10 2010 cSp 552@27-11-09 17-01-2013 33 16-05-2013 ls 15-05-2014 2487 ls 2519 5- 61 2010&11 2011 cSp 940@17-03-11 04-03-2014 53 19-05-2014 ls 25-06-2015 2524 ls 2632 vflLVsUV dfe'uj dh tkjh T;s"Brk lwph fnukad 16-07-2016 esa okf.kT; dj vf/kdkjh ls vflVsUV dfe'uj ds in ij inksUur dkfeZdks dh inksUufr dk fooj.k vflLVsUV dfe'uj lh/kh HkrhZ CHART B - RULE 5(a) (ii) dze la[;k p;u dh izd`fr fjDr o"kZ ftl ij p;u gqvk 'kklu dks vf/k;kpu iszf"kr fd;s tkus dk fnukad Ykksd lsok vk;ksx Lrj ij Mh-ih-lh dh frfFk inksUufr dkfeZdksa dh la[;k o ekSfyd fu;qfDr@inksUufr vkns'k dh frfFk iks"kd laoxZ dh T;s"Brk dze ds vk/kkj ij vfl-dfe dh T;s"Brk esa vofLFkr dzekad 6 fu;fer p;u 2007&2008&151 2008&2009& 81 ;ksx 232 690@23-01-2009 736@13-02-2009 17-02-2009 222 27-02-2009 2116 ls 2121 ds e/;
2150 ls 2177 ds e/;7
vuqiwjd p;u 2008&2009&19 1032@26-03-10 232@01-06-2010 11-06-2010 74 28-07-2010 2122 ls 2146 ds e/;
2178 ls 2211 ds e/;
fu;fer p;u 2009&2010&57 ;ksx 76 8 vuqiwjd p;u 2009&2010&34 2010&2011&28 2011&2012&32 ;ksx 94 206@15-06-12 23-06-2012 58 28-06-2012 2281 ls 2362 ds e/; fu;fer p;u 9 fu;fer p;u 2012&13&134 2013&14&01 ;ksx 135 383@16-08-13 10-09-2013 102 02-01-2014 2520 ls 2633 ds e/; 10 vuqiwjd p;u 2013&14 &33 995@28-02-2014 22-04-2014 30 19-05-2014 2634 ls 2702 ds e/;
If we examine the appointment of the petitioners of Writ Petition No.19231 (SB) of 2016 i.e. Shanti Shekhar and others then their date of appointment and serial number against their name is found as below:-
Name Date of Appointment Serial No. Shanti Shekhar Singh 09.02.2011 2212 Prabhat Kumar Pathak 09.02.2011 2216 Rahul Kumar Dwivedi 24.12.2010 2214 Bhawesh Singh 09.02.2011 2221 If we examine the candidates at serial no.6 (Chart B) of the aforesaid chart then it makes it clear that they were appointed on substantive post on 27.02.2009. The appointment of the petitioners Shanti Shekhar Singh etc. was from 24.12.2010 to 30.03.2011. Thus, the placing in the seniority list of serial no.1 and 6 is in accordance with date of substantive appointment and we do not find any illegality or irregularity in placing the petitioners in the seniority list.
Similarly, at serial no.7 (Chart B) of the chart, the candidates were appointed on substantive post on 28.07.2010 and they were placed from serial no.2122 to 2211. Accordingly, the seniority of the candidates mentioned at serial nos.1 (Chart A), 6 & 7 (Chart B) of the chart is perfectly according to the date of their appointment and entry in the service.
In Writ Petition No.15963 (SB) of 2016, the name of the officer with date of entry and serial number is given below:-
Name Date of Appointment Serial No. Anand Kumar Rai 27.02.2009 2118 Manoj Kumar Tripathi 27.02.2009 2117 Rajesh Pratap Singh 28.07.2010 2120 Manish Gupta 27.02.2009 2121 Mukesh Kumar Singh 28.07.2010 2122 Sanjay Singh 15.06.2009 2123 Govind Srivastava 24.07.2009 2127 Ajeet Kumar Singh 28.07.2010 2131 Hari Shanker Dubey 28.07.2010 2132 Ashok Kumar 27.02.2009 2153 Bajrangi Yadav 28.07.2010 2141 Vijay Kumar Chaudhary 28.07.2010 2142 Arjun Yadav 28.07.2010 2148 Dadhibal Ram 27.02.2009 2152 Ashok Kumar 27.02.2009 2157 Vinay Kumar Gautam 27.02.2009 2154 These officers were appointed on 27.02.2009 for which recommendation and approval was received from the Public Service Commission on 17.02.2009 and they have been placed as serial no.2116 to 2177 and this is in accordance with determination of seniority rules as discussed above and we find no illegality or irregularity in placing them at serial numbers mentioned in the list.
The officers mentioned at serial number 8 of the chart aforesaid were appointed on 28.06.2012 and were placed at serial numbers 2281 to 2362. These include the petitioners of Writ Petition No.18074 (SB) of 2016. The name of the officer with date of entry and serial number is given below:-
Name Date of Appointment Serial No. Chandra Shekhar Singh 28.06.2012 2281 Shri Prakash Yadav 28.06.2012 2284 Pashupati Pratap Singh 28.06.2012 2288 Suresh Kumar Verma 28.06.2012 2291 Manoj Kumar Vishwakarma 28.06.2012 2283 Raj Narayan Yadav 28.06.2012 2282 Ishwar Chandra Sharma 28.06.2012 2289 Raj Kumar 28.06.2012 2285 Pramod Kumar 28.06.2012 2290 They have contented that some of the candidates mentioned at serial number 2 of the chart were substantively appointed vide order dated 16.05.2013, thus, they should be given seniority to those officers but contention of the petitioners would not be justified for the reason that issuance of the appointment letter starts from 27.07.2011 and they were recommended from the Public Service Commission on 11.02.2011 and that was of the recruitment year 2007-2008 and in light of the rules, appointment order is to be issued in accordance to select list. Thus, they have been rightly placed at serial number mentioned against their names.
The details of the petitioners of Writ Petition No.21520 (SB) of 2016 is as follows:-
Name Date of Appointment Serial No. Brijesh Kumar Deepankar 13.09.2011 2269 Upendra Yadav 09.08.2011 2251 The petitioners of this petition are rightly placed at serial number by seniority according to their date of appointment.
Similarly, the details of the petitioners of Writ Petition No.20119 (SB) of 2016 are as under:-
Name Date of Appointment Serial No. Pushpesh Singh 28.06.2012 2310 Manoj Kumar Shukla 28.06.2012 2305 Prerna Srivastava 28.06.2012 2303 Prakash Chandra Chaurasia 28.06.2012 2312 Dharmendra Chaudhary 28.06.2012 2311 Suneel Kumar 28.06.2012 2313 Yogendra Prasad Singh 28.06.2012 2314 Seema Rani 28.06.2012 2308 Sanjay Kumar Arya 28.06.2012 2316 Suraj Pal Malik 28.06.2012 2304 Ravindra Singh 28.06.2012 2309 Anil Dixit 28.06.2012 2306 Mukesh Kumar 08.08.2014 2302 Akhilesh Kumar Dubey 28.06.2012 2301 Vijay Pal Singh 28.06.2012 2317 Ram Bhuwan 28.06.2012 2315 Suresh Singh Garbyal 28.07.2010 2318 They joined on 28.06.2012 and placed on serial number 2281 onwards in a block. The appointment of the candidates at serial no.2224 to 2280 started from 27.07.2011 and were of previous batch and as per rule they were placed in a block with their batch and we find no illegality or irregularity in placing them at the appropriate place.
124. It has been contended by learned counsel for the respondents that the requisitions which were sent on 23.01.2009 and 13.02.2009 for appointment by way of promotion were for 232 vacancies while only 222 candidates were selected vide order dated 27.02.2009. Similarly, in the year 2010 in place of 76 vacancies only 74 had been appointed vide order dated 28.07.2010 and in the year 2012 in place of 94, only 58 candidates were appointed. Their claim is that the vacancy which was unfilled should be filled up by the next senior coming within consideration zone and should be given seniority from retrospective date. Above argument is not tenable on the ground that what had not been done at that point of time during the period 2009-2010 should not be done at present by means of order under Article 226 of the Constitution of India and further we have already decided that the seniority of the person cannot be given from the date when he was not appointed and we refrain ourselves to give any direction to the Government to give promotion from any retrospective date or for any notional promotion. The policy of notional promotion is applicable in the cases where the departmental inquiry is pending and the employee is exonerated or during the period of Departmental Promotion Committee his matter was kept under sealed cover. We further refrain ourselves for issue of a mandamus for the reason that the respondents have every right to leave any vacancy unfilled or hold in abeyance in light of the provisions contained in Rule 4(2) (Proviso a), which provides as under:-
"4(2) Provided that the Governor may -
(a) Leave unfilled or hold in abeyance any vacant post without thereby entitling any person to compensation..........."
125. We also make it clear that we have examined the matter in controversy on the basis of policy and principles for determination of seniority. We have heard the cases of the petitioners in light of the seniority rules as discussed above and not examined the individual seniority of other officials not a party in these petitions. Thus, we hereby feel it appropriate that in future if any officer is aggrieved by the position in the list then in light of the present judgment he may move an application before the competent authority and the competent authority may dispose of his representation individually in light of the present order.
126. During the course of argument it has been submitted by learned counsel for the petitioners as well as learned counsel for the respondents that the process of selection or recruitment by the Public Service Commission takes a long time causing delay in the appointment and further creating technicalities in determination of the seniority. Thus, certain directions may be issued to the respondents. Similarly, delay in holding the Departmental Promotion Committee has also been complained by the learned counsel.
127. We think it appropriate to issue the following directions to the respondents:-
I. The Departmental Promotion Committee should be convened at a regular intervals to draw panels which could be utilized on making promotions against the vacancies occurring during the course of a year. For this purpose, it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, integrity certificates, seniority list etc. for placing before the Departmental Promotion Committee. The DPC could be convened every year if necessary, on a certain fixed date. The Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy unless rules made subsequently have been expressly given retrospective effect. Since Amendment to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force.
II. Where for reasons beyond control, the DPC not be held in a year, even though the vacancies arose during that year, the first DPC that meets thereafter should follow the procedure of determination of actual number of regular vacancies that arose in each of the previous year immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately and consider the officers who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. After considering the eligibility list the select list be prepared according to the vacancy of recruitment year.
III. The requisition for selection by way of direct recruitment be sent to the Public Service Commission by calculating the existing vacancies and vacancies likely to occur during the recruitment year as per existing rules and be sent to the Public Service Commission in advance so that the process of recruitment be conducted and completed within a time frame and recommendation from the Public Service Commission be sent to the Government before the starting of the recruitment year so that the vacancies must be filled up within time.
Accordingly, we decide the pending writ petitions on the following principles:-
i. Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources.
ii. Any departure in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
iii. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively.
iv. The promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post.
v. Appointment be issued in "order as it stood in the cadre from which they are promoted".
vi. Unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to be implemented on the date when it is actually effected by way of appointment (in case of sealed cover procedure when the recommendations are kept in sealed cover awaiting the outcome of the disciplinary proceedings, promotions have to be retrospectively made with or without financial benefits subject to decision of the appointing authority).
128. Accordingly and in light of the above principles, Writ Petition Nos.19231, 21520, 20119, 18074 - (SB) of 2016 are dismissed. However, Writ Petition No.15963 (SB) of 2016 is decided with direction to the respondents to expedite the matter of appointment (by way of promotion) against the vacancies in the respective quota before the closure of the present recruitment year i.e. 30.06.2017 . No order as to costs.
Order Date :- 04.05.2017
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)
A. Katiyar