Allahabad High Court
Rajesh Kumar Tandon & Ors. vs State Of U.P. Thru. Prin.Secy. Tax & ... on 20 October, 2021
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved 1. Case: - SERVICE SINGLE No. - 12020 of 2020 Petitioner :- Rajesh Kumar Tandon & Ors. Respondent :- State Of U.P. Thru. Prin.Secy. Tax & Registration Lko. & Ors Counsel for Petitioner: - Vijay Kumar Srivastava,Shailendra Kumar Dubey Counsel for Respondent :- C.S.C.,Alok Saxena,Dilip Mani,Girdhari Lal Shukla,Shobhit Mohan Shukla,Vijay Dixit Along with 2. Case: - SERVICE SINGLE No. - 12834 of 2020 Petitioner: - Awadhesh Kumar Singh & Ors. Respondent: - State Of U.P. Thru. Prin.Secy. Tacx & Reg. Lko. & Ors. Counsel for Petitioner: - Ajay Pratap Singh Counsel for Respondent: - Alok Saxena,Girdhari Lal Shukla,Vijay Dixit 3. Case: - SERVICE SINGLE No. - 17765 of 2020 Petitioner :- Anil Kumar Kanaujia Respondent :- State Of U.P. Thru. Prin. Secy.Tax & Registration,Lko.& Ors. Counsel for Petitioner :- Vijay Kumar Srivastava,Shailendra Kumar Dubey Counsel for Respondent :- C.S.C.,Sanket Saxena,Vijay Dixit Hon'ble Dinesh Kumar Singh J.
1. WRIT PETITIONS:
These petitions have been filed for quashing the seniority list dated 09.08.2012 issued by the State Government for the cadre of Assistant Commissioner, Commercial Tax as well as order dated 20.03.2020 passed by the Government whereby representation dated 3.08.2019 given by one of the petitioners for re-fixing/revisiting the seniority list dated 09.08.2012 by placing Direct recruit Assistant Commissioners en-block over and above the promotees Assistant Commissioners has been rejected.
2. FACTS:
Since common questions of fact and law are involved, the facts of the lead petition are mentioned hereinbelow for deciding the controversy involved in these petitions.
(i) The petitioners and private respondents are posted as Deputy Commissioner in different districts of Uttar Pradesh in Commercial Tax Department, U.P. after they were promoted in the year 2014 based on seniority list dated 09.08.2012. Services of the petitioners as well as private respondents are governed under U.P. Sales Tax Service Rules, 1983 (hereinafter referred to as 'Rules, 1983') as amended from time to time.
(ii) The petitioners are direct recruits to the post of Assistant Commissioner, Commercial Tax whereas private respondents are promotee officers, who were promoted from the post of Sales Tax Officer Grade-II. Post of Deputy Commissioner and above are to be filled up only by promotion. Nomenclature of the Sales Tax Department was changed as Trade Tax Department and, thereafter name was again changed as Commercial Tax Department.
(iii) In pursuance to the advertisement issued for holding selection for the Combined State Public Service Examination, 2005 by the Uttar Pradesh Public Service Commission, the petitioners were selected as per merit list prepared by the Commission. They joined the service on different dates in the year 2008-09. Private respondents who were holding post of Commercial Tax Officer were promoted under 50% quota to the post of Assistant Commissioner vide order dated 27.02.2009 and they joined the said post on the same day.
(iv) Final seniority list for the cadre of Assistant Commissioner Commercial Tax from Serial No.173 to 2115 was issued on 09.08.2012, wherein the officers appointed directly and through promotion on the post of Assistant Commissioner in the recruitment year 2008-09 were placed in order of seniority as per the relevant Rules in the ratio of 1:1.
(v) The petitioners as well as respondent Nos.3 to 11 were promoted on the post of Deputy Commissioner, Commercial Tax by means of a common order in the year 2014 based on seniority list dated 09.08.2012.
(vi) Petitioner No.8 submitted representation dated 03.08.2019 against the seniority list dated 09.08.2012. Respondent No.1 considered the representation and rejected the same vide impugned order dated 20.03.2020 stating that the seniority list dated 09.08.2012 was prepared in accordance with law.
3. RELEVANT STATUTORY PROVISIONS: -
In order to regulate the services of officers of Sales Tax Department, service rules named as U.P. Sales Tax Service Rules, 1983 were promulgated which consisted of three posts namely, Sales Tax Officer, Assistant Commissioner and Deputy Commissioner.
(i) Rule 5 of Rules, 1983 provides for source of recruitment to the various categories of post in the services.
For convenience Rule 5 is extracted hereunder: -
"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."
(ii) Rule 18 of the Rules, 1983 provides for preparation of combined select list if any year of recruitment appointments are made both by direct recruitment and by promotion. The aforesaid rule provides that select list shall be prepared in such a manner that the prescribed percentage is maintained and first name in the list being of the person appointed by promotion.
For ready reference, Rule 18 of Rules, 1983 is extracted hereinbelow: -
"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."
(iii) Sub-Rule 2 of Rule 19 provides that 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. Sub-Rule 3 however, provides that 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 it stood in the cadre from which they are promoted. It is further provided that 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.
(iv) Rule 22 of the Rules, 1983 relates to general rule of seniority which provides that the seniority of persons in any category of post shall be determined from the date of order of substantive appointment.
Rule 22 of the Rules, 1983 is reproduced hereunder: -
"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.
(v) The State Government framed U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules, 1991') under Article 309 of the Constitution of India for determination of the seniority of persons appointed to the service under the State Government. It is provided that the Rules would be applicable to all government servants in respect of whose recruitment and conditions of service, rules may be or have been framed separately.
(vi) Seniority Rules, 1991 have overriding effect so far as determination of seniority of government servants is concerned. Under Rule 4, substantive appointment has been defined as appointment, not being an ad-hoc appointment, on a post in the cadre of Service, made after selection in accordance with the service rules of the respective services.
(vii) Rule 5 deals with determination of the seniority where appointments are made by direct recruitment only. Rule 6 deals with the determination of the seniority where appointments are made only from promotion from a single feeding cadre. Rule 7 deals with a situation where appointments are made by promotion from more than one feeding cadre.
(viii) Rule 8 is in respect of determination of seniority where appointments are made by promotion and direct recruitment. Rule 8 would be relevant for the purpose of determination of the controversy involved in the writ petitions.
For convenience, Rule 8 is reproduced hereunder: -
"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 Rule7 accordingly as the promotion are to be made from as 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 -a-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 recruit 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 recruit Fifth ...Promotee Sixth of eight ...Direct recruit and so on.
provided that-
(i) Where appointments 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."
4. SUBMISSIONS:
Heard Mr. Vijay Kumar Srivastava and Mr. Ajay Pratap Singh, Advocates for the petitioners, as well as Mr. Sandeep Dixit, learned Senior Advocate, assisted by Mr. Vijay Dixit, Advocate, Mr. Alok Saxena, Advocate, Mr. Ran Vijay Singh, Additional Chief Standing Counsel for respondents and Mr. Shobhit Mohan Shukla, Advocate for intervener.
(i) Learned counsel for the petitioner has submitted that in preparing the seniority list dated 09.08.2012, the State Government had wrongly applied the provisions of Rule 8(3) of the Rules, 1991 as the petitioners were directly recruited on the post of Assistant Commissioner, Commercial Tax in the year 2005. However, private respondents were promoted through selection held in 2009 and, therefore, it is submitted that selection of the petitioners and the private respondents are different selections and their appointments to the post of Assistant Commissioner, Commercial Tax were not as a result of same selection, therefore, Rule 8(3) should not have been applied for determining the seniority between the petitioners (direct recruits) and the promotees (private respondents). Seniority list ought to have been prepared as per Rule 8(1) from the respective dates of substantive appointment.
(ii) It has been further submitted that private respondents (promotee) have been made senior to the petitioners in the seniority list dated 09.08.2012 though they were promoted after the appointments of the petitioners. It is submitted that the promotee officers have been given seniority from the date when they were not even born in the cadre of Assisstant Commissioner, Commercial Tax.
(iii) It has been further submitted by learned counsel for the petitioners that for making another selection for the post of Assistant Commissioner, Commercial Tax through direct recruitment, an advertisement was issued in 2007, which got completed in the year 2010. Persons selected and appointed on the post of Assistant Commissioner, Commercial Tax through direct recruitment joined their services from December 2010 onwards. In the same year, another selection through promotion on the post of Assistant Commissioner, Commercial Tax from the post of Commercial Tax Officer was held and promotion order was issued on 28.07.2010. Seniority of these officers was determined on the basis of date of substantive appointment and the promotee officers were placed en block above direct requirements who were appointed after date of promotion of the promotees i.e. 28.07.2010 and, accordingly seniority list dated 8.07.2016 was issued.
(iv) Seniority list dated 08.07.2016 was challenged before this Court by direct recruitment who were selected in the year 2010 by filing several writ petitions leading Writ Petition No.19231(SB) of 2016 (Shanti Shekhar Singh vs State of U.P. & Ors) praying therein for fixing seniority of direct recruits and promotees in cyclic manner as was done in the case of the present petitioners and private respondents in seniority list dated 09.08.2012. This Court dismissed the said writ petition vide judgment and order dated 04.05.2017 and laid down principles for determining the seniority in para 127 of the said judgment.
(v) This Court has held that the seniority list should be given from the date of entry in a particular service or the date of substantive appointment. It has been further held that seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively. Judgment and order dated 04.05.2017 was challenged before the Supreme Court in S.L.P. (Civil) Diary No.8268 of 2018, however, the same was dismissed by the Supreme Court vide order dated 18.05.2018.
(vi) Learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in the case of State of Bihar vs Arbind Jee:2021 SCC OnLine SC 821 to submit that retrospective seniority cannot be given from the date when the persons were not even born in the cadre. He, therefore, has submitted that counting the seniority of the private respondents from the date when they were not even born in the cadre of Assistant Commissioner, Commercial Tax is against the express provision of the seniority Rules, 1991 and, the petitioners ought to have been placed en block senior to the private respondents in the seniority list dated 09.08.2012 as they were appointed on the post of Assistant Commissioner Commercial Tax earlier than the private respondents. It has been, therefore, submitted that the impugned seniority list dated 09.08.2012 as well as order dated 20.03.2020 are liable to be quashed.
(vii) On the other hand, Mr. Sandeep Dixit, learned Senior Advocate assisted by Mr. Vijay Dixit for private respondents and Mr. Ranvijay Singh, Ld. Addl. Chief Standing Counsel appearing for State have submitted that challenge in the writ petition is seniority list of Assistant Commissioners, Commercial Tax dated 09.08.2012 and, the writ petition has been filed after a delay of about 9 years. Aforesaid seniority list was not challenged in all these years. The said seniority list was acted upon inasmuch as the promotions were made to the post of Deputy Commissioner, Commercial Tax from the same seniority list in the year 2014. Belated challenge by the petitioners to the long-standing seniority list dated 09.08.2012 is to be rejected as the petition is barred by gross delay and latches.
(viii) It has been further submitted that the representation of the petitioner No.8 on which the decision has been rendered on 20.03.2020 by respondent No.1 cannot confer a fresh cause of action to the petitioners as delay and latches are to be considered with reference to date on which impugned seniority list was published and not from the date when order was passed on the representation of the petitioner No.8.
(ix) It has also been submitted by learned Senior Advocate that settled seniority position should not be unsettled after substantial lapse of time. Anyone who feels aggrieved by the administrative decision affecting one's seniority should act with diligence and promptness. One cannot be allowed to knock the door of the Court after substantial lapse of time of 9 years from the date when the final seniority list dated 09.08.2012 was issued and acted upon subsequently.
(x) Under Rule 8(3) of Rules, 1991, phrase ''one selection' would mean selection in the same recruitment year. To substantiate the said submission, learned Senior Advocate has placed reliance on two judgments of this Court reported in 2014 (6) AWC 6389 :Ravindra Nath Pandey vs State of U.P. and 2015 (33) LCD 1609: Anil Kumar vs State of U.P. & Ors.
(xi) In respect of the seniority list dated 18.07.2016 from Serial Nos.2116 to 2702, it has been contended that the said seniority list was issued in respect of the persons who have been appointed through direct recruitment and promotion on the post of Assistant Commissioner Commercial Tax in different years after 2009. For each recruitment year, different provisions of Rules, 1991 were applied as can be seen that for recruitment year 2009-10 to 2012-13 Seniority list was prepared based on provisions of Rule 8(1) and 8(2) of the Rules, 1991 whereas in the recruitment year 2013-14, Rule 8(3) of the Rules, 1991 was applied.
(xii) It has been further submitted that since selection was made in case of the petitioners and private respondents in the same recruitment year as such provisions of Rule 8(3) would apply. Provisions of Rule 8(1) is subject to provisions of Rule 8(3) and, therefore, the seniority of promotees and direct recruits for the recruitment year 2008-09 was determined on rotation in the ratio of 1:1. It has been further submitted that judgment of Shanti Shekhar Singh (supra) while considering the dispute with respect to inter se seniority of promotees and direct appointment did not take into consideration the law laid down by the Division Bench of this Court in the case of Ravindra Nath Pandey (supra) which is of equal strength and, it appears that the judgment passed in the case Shanti Shekhar Singh (supra) is per incuriam.
(xiii) Mr. Shobhit Mohan Shukla, learned counsel appearing for interveners has submitted that the promotions were made from the same seniority list dated 09.08.2012 to the post of Deputy Commissioner and, after a gap of around 9 years when promotion to the next higher post of Joint Commissioner is due and in process, the petitioners have come to this Court assailing the said seniority list. He has further submitted that applicants are much higher in gradation list than the petitioners. Therefore, even if the writ petitions are allowed, the applicants would remain above the petitioners in the gradation list. However, on account of filing of the present writ petitions, promotion of the applicants in pursuance to the recommendation of the Departmental Promotion Committee is held up. Mr. Shobhit Mohan Shukla, learned counsel has submitted that the Departmental Promotion Committee has considered the promotion against 19 posts of Joint Commissioner which are existing and accruing in near future. The applicants are facing hardship as their promotion is held up because of the pendency of the present writ petitions though they would remain senior to the petitioners as well as private respondents even if the writ petitions stand allowed.
(xiv) Mr. Shobhit Mohan Shukla, learned counsel has supported the submissions advanced on behalf of Mr. Sandeep Dixit, learned Senior Advocate with respect to gross delay and latches in challenging the seniority list dated 09.08.2012.
5.ANALYSIS:-
(i) It is admitted position that the seniority list of the petitioners and private respondents is to be prepared in accordance with Government Servants Seniority Rules, 1991. The question which arises for consideration is whether inter-se seniority of the petitioners and private respondents is to be determined from the date of their substantive appointment in accordance with Rule 8 (1) or it is to be determined in accordance with Sub-Rule 3 of Rule 8 of the Seniority Rules 1991?
(ii) From perusal of Rule 8, it is evident that under Sub-Rule 1, seniority is to be determined from the date of the order of substantive appointment unless the appointment order specifies a particular back date with effect from which a person would be deemed to be substantially appointed but in other cases, date of issuance of the order of appointment would be date of substantive appointments. Under Sub-Rule 2 of Rule 8 inter se seniority of persons appointed on the result of any one selection shall be same as shown in the merit list prepared by the Commission.
(iii) Sub-Rule 3 of Rule 8 deals with a situation where appointments are made both by promotion and direct recruitment on the result of any ''one selection'. The sub rule (3) provides that in such a case, the seniority of promotees vis-a-vis direct recruits is to be determined in a cyclic order 'the first being a promotees' in accordance with the quota prescribed for two sources where the quota of promotees and direct recruits is in the ratio of 1:1, the first person in the seniority list shall be promotee officer and the second shall be direct recruit and so on and so forth.
(iv) Final seniority list dated 09.08.2012 of the Assistant Commissioner, Commercial Tax from Serial Nos.1732 to 2115 was finalized and issued as per provisions of Rule 8(3) of Rules, 1991 and the promotees and direct recruits for the recruitment year 2008-09 were placed in ratio of 1:1.
(v) The issue regarding what is the import and purport of phrase ''one selection' occurring in sub-rule (3) has to be dealt with first before proceeding further in the matter. Ordinarily, appointments through direct recruit and promotion to a post are not made by one selection inasmuch as direct recruitment to the post of Assistant Commissioner in the present case is made by the Uttar Pradesh Public Service Commission through competitive examination whereas promotion is made by the Departmental Promotion Committee constituted for the said purpose.
(vi) This Court in the case of Ravindra Nath Pandey vs State of U.P.: 2014(6) AWC 6389 has held that Sub-rule 3 of Rule 8 of Rules, 1991, should be construed in such a manner so that rule does not become inoperative. It has been held that phrase "one selection" occurring in Rule 8(3) should be construed to mean the selection made in the same ''year of recruitment' and seniority of all persons who are appointed by direct recruitment or promotion in the same recruitment year, should be determined as per Rule 8(3) of Rules, 1991.
(vii) Paragraphs 27 and 31 of the said judgment are relevant for the purpose of present case which are extracted hereunder:-
"27. In view of above, sub Rule (3) of Rule 8 of 1991 Seniority Rules should be construed in such a manner which may not make the rule inoperative. Further external aid from 1992 Service Rules may be taken while interpreting 1991 Seniority Rules for removal of ambiguity and doubt, if any.
.............
28. So far as the mandate contained in Rule 8(3) of 1991 Seniority Rules to the effect where appointments are made both by promotion and direct recruitment on the result of one selection, seniority of promotees and direct recruits will be determined by a cyclic order, is concerned, since admittedly and ordinarily, in one selection, appointment and direct recruitment may not be done, then while construing the provisions harmoniously, the provision contained in Sub Rule (3) may be interpreted relating it to the ''year of recruitment' as defined by Sub Rule (m) of Rule 3 of 1992 Rules. It means all persons who have been appointed by direct recruitment or by promotion in a recruitment year shall be entitled to be considered for seniority in pursuance to 1991 Seniority Rules. The seniority list shall contain the names of officers in order of their recruitment against substantive vacancy relating back to the recruitment year. The appointment should have been done in accordance with rules."
(viii) This Court in the case of Arun Kumar Saxena vs State of U.P. & Ors : 2008 (6) AWC 6474 while interpreting Clause 3 or Rule 8 of Rules, 1991 has held that Rule 8(3) contemplates determination of seniority between direct recruits and promotees as a result of ''one selection', meaning thereby that the aforesaid Rule will have application only where appointments both by direct recruitment and the promotion are made as a result of ''one selection'. If selections are made in different recruitment years, Rule 8(3) will have no application. It means that Rule 8(3) would come into play when selection is made by direct recruitment as well as by promotion in the same ''recruitment year' and not otherwise.
(ix) This Court in the case of Anil Kumar vs State of U.P. [2015 (33) LCD 1609] while interpreting phrase 'one selection' has held that as there cannot be one selection for direct recruitment and promotion, therefore, one selection according to Rule 8(3) can only mean "selection in the same year"
Para 9 of the aforesaid judgment which is extracted hereunder:-
"9.Now coming to the validity of the rejection order dated 18.5.2006 we find that the source of recruitment on the post of State Radio Officer is promotion. Direct recruitment has been permitted as an alternative in the event no eligible person is available for promotion. Nevertheless, considering the fact that both direct recruitment and promotion to the post in question was made in the same recruitment year, a combined list ought to have been prepared as per the said provisions of Rule 16, 17 and 18 of the Rules 1979 wherein the promotee officer should have been placed first. As the source of recruitment under Rule 5 (iii) is promotion, therefore, the promotee officer ought to have been placed above for this reason also. On the same analogy a combined list ought to have been prepared under Rules 16 and 17 and based thereon the combined appointment orders ought to have been issued placing the names in the same order as they figure in the seniority list prepared under Rules 16 and 17, but it does not appear to have been done. Even under Rule 8(3) of the Seniority Rules, 1991 the placement in the seniority list where appointments are made both by promotion and direct recruitment, the seniority of promotee viz a viz direct recruit shall be determined in a cyclic order (the first being a promotee), as far as may be, in accordance with the quota prescribed for the two sources, though no quota is prescribed for such direct recruitment, nevertheless, considering the peculiar facts of the case and the proviso to Rule 5 (iii) of the Rules 1979, the principle applicable in Rule 8(3) of the Seniority Rules, 1991 should have been applied and based thereon the seniority ought to have been determined. As there cannot be "one selection" for direct recruitment and promotion, therefore, the words mentioned in Rule 8(3) can only mean selection in the same year. In these circumstances the order of rejection can also not be sustained."
(x) Thus, one selection occurring in Rule 8(3) of Rules,1991 means in the same year. If appointments are made to a post by direct recruitment and by promotion as per their quota in the same ''recruitment year', then their inter se seniority is to be determined applying the provisions of Rule 8(3) of Rules, 1991.
(xi) ''Recruitment year' or ''year of recruitment' is defined under Rules, 1983 to mean 12 months commencing from 1st day of July of calendar year. Rule 3(o) defines ''year of recruitment' which is reproduced hereinbelow:-
"3.(o) ''Year of recruitment' means a proof of twelve months commencing from the first day of July of calendar year."
(xii) The term ''recruitment year' does not mean the year in which, recruitment is initiated or the year in which vacancy arises. The Supreme Court has held that contrary view expressed in Union of India vs N.R. Parmar: (2012) 13 SCC 340 is not correct view. The Supreme Court has defined ''recruitment year' means the year in which the recruitment takes place i.e., by issuing of an appointment letter. ''Recruitment year' would not mean when vacancy occurred for a post as it is not incumbent upon the Government to fill up the post as soon as the vacancy arises. In the case of Harish Chandra Ram Vs Mukh Ram Dubey, 1994 Supp (2) SCC 490 in para 5, it has been held as under: -
"5. In view of the afore stated resolutions, it is clear that the general candidates will not be considered for promotion to the post for SC, ST or BC reserved candidates. The reserved candidates even if they are not available, it is settled law that unless de reservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder cadre or by transfer. So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance a hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1984, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So, each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment."
(Emphasis Supplied)
(xiii) Recruitment means appointment after completion of recruitment process. Recruitment and appointment are not two different concepts in service jurisprudence. Unless the selection is complete in all respects to a post, it cannot be said that a person has been recruited to the service. In the case of direct recruits, the process of recruitment starts with invitation of applications by the Commission, and in case of promotion, it begins with the nomination made by the competent authority by holding D.P.C. However, in both cases final selection gets completed when appropriate orders for appointment are issued. Until final selection is made, and appropriate order is issued for appointment, no person can be said to have been recruited in the service. Persons appointed through direct recruitment and by promotion cannot claim seniority from the date when the vacancies occur in their respective quota, but it must be determined when final recruitment/appointment is made after selection/recruitment process. It is well settled that year in which vacancy occurs is not relevant for the purposes of determining the seniority irrespective of the year when a person is recruited.
(xiv) The Supreme Court in the case of Jagdish Ch. Patnaik vs State of Orissa : (1998) 4 SCC 456 in para 32 has explained the aforesaid concept as under:-
"32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the learned counsel since the process of recruitment takes a fairly long period as the Public Service Commission invites application, interviews and finally selects them whereupon the Government takes the final decision, it would be illogical to ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that would not give a handle to the Court to include something which is not there in the rules of seniority under Rule 26. Under Rule 26 the year in which vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter se seniority between direct recruits and the promotees. It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new rule of seniority. We are, therefore, not in a position to agree with the submission of Mr Banerjee, the learned Senior Counsel appearing for the appellants, on this score."
(xv) On commencement of the selection/recruitment process, a candidate does not get recruited to the service, only on completion of selection/recruitment process a candidate gets selected for appointment. Under the service jurisprudence, seniority cannot be claimed from a date when an incumbent is yet to be borne in the cadre. The Supreme Court in the case of K.Meghachandra Singh & Ors vs Nigam Siro & Ors: (2020) 5 SCC 689 while relying the judgment in the case of Jagdish Ch.Patnaik vs State of Orissa (supra) has overruled the ratio of the judgment in the case of Union of India vs N.R. Parmar (supra), wherein it was held that seniority of the direct recruits would be of the year when the selection process commenced. The Supreme Court in the case of N.P. Parmar (supra) held that administrative delay in finalization of recruitment leading to delayed appointment should not deprive the individual of his due seniority. Paras 28 and 29 of the judgment in the case of K.Meghachandra Singh(supra) are extracted hereinbelow:-
"28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word "recruited" occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued.
29. The above ratio in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] is followed by this Court in several subsequent cases. It would however be appropriate to make specific reference considering the seniority dispute in reference to the Arunachal Pradesh Rules which are in pari materia to the MPS Rules, 1965 [vide Nani Sha v. State of Arunachal Pradesh [Nani Sha v. State of Arunachal Pradesh, (2007) 15 SCC 406 : (2010) 1 SCC (L&S) 719] ]. Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime."
(xvi) If appointments through process of direct recruitment and promotion are made to a post in accordance with quota prescribed under the relevant rules in 12 months commencing from 1st July to 30th June, then inter se seniority of such direct recruitments and promotees is to be determined applying the principles of Rule 8(3) of 1991 Rules. In the present case, final selection and appointments to the post of Assistant Commissioner, Commercial Tax through direct recruitment (petitioners) and promotion (private respondents) was concluded in the ''year of recruitment' 2008-09 i.e. 01.07.2008 to 30.06.2009. The petitioners were issued appointment letters on 19.12.2008 in pursuance thereof, they joined between 24.12.2008 to 16.06.2009 whereas the promotion order in respect of private respondents was issued on 27.02.2009 and all the promotees submitted their joining on the same day i.e. 27.02.2009.
(xvii) Learned counsel for the petitioners has submitted that seniority list of Assistant Commissioner, Commercial Tax dated 18.07.2016 in respect of the promotees and direct recruits of the year of recruitment year 2010 was prepared as per provisions of Rule 8(1) of the Rules, 1991 on the basis of date of substantive appointment and thereby promotee officers were placed en block above the direct recruits, who were issued appointment orders after the date of promotion of the promotees i.e. 28.07.2010. Several writ petitions were filed by the direct recruits leading Writ Petition No.19231(SB) of 2016: Shanti Shekhar Singh vs State of U.P. & Ors claiming for fixation of seniority between direct recruits and promotees of the year 2010 in cyclic manner in the ratio of 1:1 as provided under Rule 8(3) and as the impugned seniority list dated 09.08.2012 was prepared.
(xviii) The Division Bench of this Court vide judgment and order dated 04.05.2017 rejected the claim of the petitioners in the said writ petitions and in para 127 while laying down the principles for determination of seniority held that the seniority had to be given from the date of substantive appointment. Para 127 of the judgment and order dated 04.05.2017 is reproduced hereunder:-
"127. We think it appropriate to issue the following directions to the respondents: -
I. The Departmental Promotion Committee should be convened at a regular interval 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)."
(xix) A Special Leave Petition filed against the said judgment and order dated 04.05.2017 was dismissed in limine by the Supreme Court being SLP(C) Diary No.8268 of 2018 vide order dated 18.05.2018. It has been submitted that since the seniority list dated 18.07.2016, which was prepared as per provisions of Rule 8(1) of the 1991 Rules has been upheld by this Court in the said judgment in the case of Shanti Shekhar Singh (supra) and the Supreme court has dismissed the S.L.P., the impugned seniority list dated 09.08.2012 as well as order dated 20.03.2020 are untenable and liable to be quashed and the Department should be directed to prepare the seniority list in accordance with Rule 8(1) of Rules, 1991 inasmuch as in the same Department two seniority list applying the different provisions of Rules, 1991 should not exist.
(xx) Thus, the petitioners did not have any grievance till the Supreme Court dismissed the S.L.P. against the judgment and order dated 04.05.2017 passed by the Division Bench in the case of Shanti Shekhar Singh (supra). Once the S.L.P. got dismissed, one of the petitioners filed the representation against the seniority list dated 09.08.2012, which came to be rejected on 20.03.2020. This Court did not take note of the judgment in the case of Ravindra Nath Pandey (supra), which is of co-equal strength in its judgment in the case of in the case of Shanti Shekhar Singh (supra). There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. It is well settled law that in limine dismissal of the SLP does not amount to the affirmation/upholding of the judgment/order of the High Court by the Supreme Court.
(xxi) The Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 after taking note of several judgments on this aspect in para 28 held as under:-
"28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh case [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] but had been guided by Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] . We have no hesitation that it is not a binding precedent on the co-equal Bench."
(xxii) Next question which arises for consideration is that whether the petitioners who had no grievance against the impugned seniority list dated 09.08.2012 till the year 2020, when the S.L.P. against the judgment and order dated 04.05.2017 passed in the case of Shanti Shekhar Singh (supra) was dismissed, get cause of action in the year 2020 to challenge the said seniority list as representation filed by one of the petitioners got rejected vide impugned order dated 20.03.2020? It is well settled law that a party does not get cause of action to get a dispute reopened, which is finally settled between the parties because of change of law or decision of the Court.
(xxiii) In the present case, impugned seniority list dated 09.08.2012 remained unchallenged for 9 long years. Promotions were made in the year 2014 based on this seniority list to the post of Dy Commissioner, Commercial Tax without any demur by the petitioners, therefore, I am of the view that the petitioners do not get a cause of action to raise the dispute against the seniority list dated 09.08.2012 in the year 2020 because of the judgment in the case of Shanti Shekhar Singh (supra).
(xxiv) In number of decisions, it has been held that delay and latches have to be seen from the original cause of action and not from the date of representation or from the decision on the representation, if any e.g;
(i) Union of India & Ors vs M.K. Sarkar: (2010) 2 SCC 59; (para 15 &16) and;
(ii) Union of India & Ors vs C.Girija & Ors: (2019) 15 SCC 633; (para 16 & 20 (xxv) If the petitioners were aggrieved by the seniority list dated 09.08.2012, they could have come to this Court before promotion to the post of Dy Commissioner, Commercial Tax was held from the said seniority list. They have approached this Court in the year 2020 and, therefore, these writ petitions are barred by gross delay and latches, which are liable to be dismissed on this ground alone.
(xxvi) It is also well settled that settled seniority of persons in a service should not be disturbed after much delay as seniority in service should not be a variable factor. It would be apt to mention a few judgments on this aspect as under:-
(i) State of Orissa vs Pyarimohan Samantaray & Ors: (1977) 3 SCC 396 (para 6);
(ii) K.R.Mudgal & Ors vs R. P. Singh & Ors. (1986) 4 SCC 531 (para 7-9); and
(iii) Malcom Lawrence Cecil D'souza vs Union of India & Ors : (1976) 1 SCC 599 (para 8-9) (xxvii) In this case, it would be wholly unjustified to unsettle the seniority position of the petitioners and private respondents, which has held the field for long 8-9 years without any challenge and promotions were made to the posts of Dy Commissioner, Commercial Tax from that seniority list. The Supreme Court in the case of K.A. Abdul Majeed Vs State of Kerala & Ors: (2001) 6 SCC 294, held that the seniority assigned to any employee could not be changed after a lapse of 7 years, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
(xxviii) Any claim for seniority at a belated stage is required to be rejected as it seeks to disturb the vested right of other persons regarding seniority, rank and promotion, which have accrued to them during the intervening period. Delay and latches in challenging the seniority is always fatal. The petitioners have been fence sitters. After the SLP against the decision in the case of Shanti Shekhar Singh (supra) came to be dismissed, they have approached this Court. It is well settled that fence sitters cannot be allowed to raise a dispute or challenge the validity of the order after its conclusion. A few judgments are mentioned herein below:-
[(i) Aflatoon & Ors vs Lt. Governor, Delhi & Ors AIR 1974 SC 2077; (ii) State of Mysore vs V.K. Kangan & Ors, AIR 1975 SC 2190; (iii)Pt. Gidharan Prasad Missir vs State of Bihar & Ors: (1980) 2 SCC 83; (iv) H.D. Vora vs State of Maharashtra, AIR 1984 SC 866; (v) Bhoop Singh vs Union of India, AIR 1992 SC 1414; (vi) The Ramjas Foundation & Ors vs Union of India & Ors: AIR 1993 SC 852; (vii) Ram Chand Vs Union of India : (1994) 1 SCC 852 (viii) State of Maharashtra vs Digambar, AIR 1995 SC 1991;(ix) Municipal Corporation of Greater Bombay vs Industrial (Development Investment Co. (P) Ltd. & Ors,, (1996) 11 SCC 501;(x) Padma vs Dy Secy. To the Govt. of TamilNadu (1997) 2 SCC 627; (xi) Hindustan Petrolium Corp. Ltd., vs. Dolly Das: (1999) 4 SCC 450; (xii) Life Insurance Corporation of India vs Jyotish Chandra Biswas: (2000) 6 SCC 562; (xiii) L. Muthu Kumar & Anr vs State of Tamil Nadu & Ors: (2000) 7 SCC 618; (xiv) Municipal Council, Ahmadnagar & Anr vs Shah Hyder Beig & Ors AIR 2000 SC 671; and (xv) Inder Jit Gupta vs Union of India & Ors: (2001) 6 SCC 637]
6. CONCLUSIONS: -
(a) In view of the aforesaid discussion, it is held that if the appointment to the post of Assistant Commissioner Commercial Tax is made through direct recruitment and promotion in the same year of recruitment, their seniority must be determined applying the provisions of Rule 8(3) of the Rules, 1991.
(b) In the present case, since the appointment on the post of Assistant Commissioner was made through direct recruitment and by promotion in the recruitment year 2008-09, their seniority was rightly determined applying the principle of Rule 8(3) while publishing the seniority list dated 09.08.2012. Rule 8(1) cannot be applied for determining inter se seniority of direct recruits and promotees, if the selection and appointments are made in the same recruitment year through direct recruitment and promotion. Thus, it is held that the impugned seniority list is correctly prepared and settled seniority position should not and cannot be reopened after 8-9 years.
Thus, the writ petitions fail and are hereby dismissed.
Order Date:-20.10.2021 prateek