Allahabad High Court
Sudhakar Tiwari And 4 Ors. vs State Of U.P. Thru ... on 22 May, 2018
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Judgment Court No. - 19 Case :- SERVICE SINGLE No. - 72 of 2017 Petitioner :- Sudhakar Tiwari And 4 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt.Lucknow & Ors. Counsel for Petitioner :- Laltaprasad Misra,Asit Srivastava,Prafulla Tiwari Counsel for Respondent :- C.S.C.,Desh Mitra Anand,K.S. Pawar,N.S.Chaudhary,Rajnish Kumar,Vidhu Bhushan Kalia with Case :- SERVICE SINGLE No. - 599 of 2017 Petitioner :- Adarsh Kumar Srivastava And 80 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt.Lko. & Ors. Counsel for Petitioner :- Laltaprasad Misra,Asit Srivastava,Prafulla Tiwari Counsel for Respondent :- C.S.C.,Desh Mitra Anand,K.S. Pawar,Rajnish Kumar,Sameer Kalia,Vidu Bhushan Kalia with Case :- SERVICE SINGLE No. - 12840 of 2017 Petitioner :- Vimal Kumar Pherwani And Another Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt. Lko. & Ors. Counsel for Petitioner :- Karunesh Singh Pawar Counsel for Respondent :- C.S.C.,Ashok Shukla,Rajnish Kumar,Sameer Kalia,Vidhu Bhushan Kalia Hon'ble Vivek Chaudhary,J.
1. These three writ petitions relate to the same seniority dispute and, hence, all are being considered and decided together.
2. On 02.12.2000, U.P. Public Service Commission (The Commission) issued an Advertisement No. A-3/E-1/2000 for making selection on 954 vacant posts of Junior Engineer (Civil) in the Irrigation Department. Rule 8 of the U.P. Irrigation Department Civil Engineers (Subordinate) Service Rules, 1992 (Rules of 1992) required the essential qualification to be Diploma in Civil Engineering. The said advertisement and selection was challenged by degree holders, who had also applied for the said vacancies, by way of Writ Petition No. 1012 (S/S) of 2001; Anoop Ratan Awasthi Vs. Public Service Commission, Allahabad and Writ Petition No. 7062 (S/S) of 2001; Pramod Kumar Gupta and Others Vs. Public Service Commission, Allahabad. By an interim order dated 18.12.2001, the High Court stayed the entire examination schedule. The interim order dated 18.12.2001 was challenged by the Public Service Commission by Special Appeal No. 485 of 2001. In the said special appeal, by an interim order dated 19.12.2001, the diploma holders as well as the degree holders were permitted to appear in the examination scheduled to be held on 22.12.2001. The Court further permitted the Commission to declare the result of the candidates possessing diploma in civil engineering. It further provided that the result of the candidates possessing the degree in civil engineering shall not be declared till further orders of the Court. In compliance of the interim order of the Court, the examination was conducted. The result of examination, including of those who possessed diploma in civil engineering, was not declared. It appears that the diploma holders also did not take any steps for compliance of the said order.
3. During pendency of the aforesaid litigation, arising out of the advertisement of 2000, the Commission issued another Advertisement No. A-3/E-1/2002 for making selection against 361 posts of Junior Engineer (Civil) from amongst candidates belonging to Scheduled Caste and Scheduled Tribe. This selection was a special selection for the Scheduled Caste and Scheduled Tribe category candidates. The written examination of the said advertisement of 2002 was held and its result was declared in the year 2003, the final result after interview was declared on 8.12.2004. The recommendation in favour of selected candidates were made available to the department and the candidates were appointed in the year 2005 (From March, 2005 onwards).
4. Thereafter by judgment dated 05.07.2005 the Writ Petition No.1012 (S/S) of 2001 and Writ Petition No.7062 (S/S) of 2001, filed by the degree holders (with regard to advertisement of 2000), were dismissed. The degree holders were held ineligible under the Service Rules of 1992. After dismissal of the writ petitions, the result of written examination was declared. The interviews were held between the 05.11.2005 to 12.01.2006, final result was declared on 25.04.2006 and petitioners were recommended for appointment along with other qualified successful persons (from June, 2006 onwards). Thus, petitioners coming through earlier advertisement of 2000, were appointed in the year 2006, later in time, while respondents coming through advertisement of 2002, which was later in time, were appointed in the year 2005, before the petitioners.
5. After the appointments, a tentative seniority list was issued on 20.04.2006 which included the names of the respondents and other similarly situated persons. Again on 05.12.2008, another tentative seniority list was issued which included the names of the petitioners, and of the respondents. Petitioners, though they were placed below respondents, did not file any objections against the said tentative seniority list. Again on 09.09.2010, another tentative seniority list was issued and again no objections were filed by the petitioners against the said tentative seniority list. Similarly on 07.04.2014, 10.02.2015, 30.03.2015 and 22.04.2015, tentative seniority lists were issued, containing the names of petitioners below the answering respondent to which also were not objected to by the petitioners. A tentative seniority list was again issued on 27.04.2016 and against the said list petitioners, for the first time, filed their objections requesting the competent authority to place them above the respondents and other similarly situated persons in the seniority list. It is claimed by the petitioners that without considering their objections, a final seniority list has been issued by the department in which their names find place below the answering respondents. Petitioners claim seniority over the respondents on the basis that they belong to an earlier selection process.
6. Admittedly, the services of both, the petitioners and the respondents, are covered by the U.P. Irrigation Civil Engineers (Subordinate) Service Rules, 1992 (hereinafter referred to as Service Rules of 1992). The said rules were framed under proviso to Article 309 of the Constitution of India. Relevant portion of the said rules, for the purpose of the present case, is as follows:-
"3. Definitions. - In these Rules, unless there is anything repugnant in the subject or context,-
(g) "Service" means the Uttar Pradesh Irrigation Department Civil Engineers Subordinate Service;
(i) "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 were no rules in accordance with the procedure prescribed for the time being by executive instructions issued by the Government; and Part II Cadre
4. Cadre of the service. - (1) The strength of the service shall be such as may be determined by the Government from time to time.
(2) The strength of the service shall, until orders varying the same are passed under sub-rule (1), be as given below :
Name of post Number of post Permanent Temporary Total Junior Engineers (Civil) 4215 2291 6506 Provided that-
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation;
(ii) the Governor may create such additional permanent or temporary post as he may consider proper.
Part III Recruitment
5. Source of recruitment. - Recruitment to the posts in the Service shall be made from the following sources :
(1) Ninety percent by direct recruitment through the Commission.
(2) Ten percent by promotion through the Selection Committee from amongst substantively appointed Tracers and Group-C employees of the Irrigation Department of Uttar Pradesh who have completed ten years service as such and who possess the qualifications prescribed under Rule 8, on the first day of the year of recruitment.
21. Seniority.- The seniority of persons substantively appointed shall be determine in accordance with the Uttar Pradesh Government Servant Seniority Rules, 1991, as amended from time to time."
7. Before the said rules had came into force, in the year 1991, rules knows as U.P. Government Servant Seniority Rules, 1991 (hereinafter referred to as Seniority Rules of 1991) were notified. Rules of 1991 were framed under proviso to Article 309 of Constitution of India. Rule 21 of Service Rules of 1992 provides that seniority of persons substantively appointed shall be determined as per Seniority Rules of 1991. Relevant portion of Seniority Rules of 1991 is as follows:-
"Part II Determination of Seniority
5. Seniority where appointments by direct recruitment only. - Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :
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 reasons, shall be final :
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation. - Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection.
6. Seniority where appointments by promotion only from a single feeding cadre. - Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre.
Explanation. - A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.
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 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-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 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 to 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 appointments 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."
8. The Seniority Rules of 1991 came up for consideration before the Supreme Court in a similar factual matrix in case of Pawan Pratap Singh and Another Vs. Reewan Singh and Others reported in (2011) 3 SCC 267. In the said case one group of Deputy Jailors were appointed in the year 1991 through the selection made by U.P. Subordinate Service Selection Commission and other group was appointed in the year 1994 by U.P. Public Service Commission. The advertisement by the U.P. Public Service Commission was issued on 26.12.1987 but the process could be completed and appointments could be made in the year 1994 only. Meanwhile, U.P. Subordinate Service Selection Commission was constituted and other vacancies were advertised by it on 27.10.1990 and after completing the selection process, the list of selected candidates was forwarded to the State Government in 1991 and from November, 1991, the State Government issued appointment letters to the candidates selected by the U.P. Subordinate Service Selection Commission. The main judgment is delivered by Justice R.M. Lodha. In the said judgment his lordship, after considering Rule 5 and Rule 8 of Seniority Rules of 1991, concluded that it is Rule 8 and not Rule 5, which would be applicable where the cadre consists both direct recruitees and promotees. Relevant paragraphs of the said judgment reads as:-
"28. The word "only" in Rule 5 of the 1991 Rules is of significance and it becomes clear therefrom that Rule 5 of the 1991 Rules has no application at all for determination of inter se seniority of the 1991 and 1994 appointees because 1980 Rules provide for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion. It is only where service rules in the State of U.P. provide for appointments by direct recruitment alone that Rule 5 of 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon second proviso to rule 5 of the 1991 Rules for determination of inter se seniority amongst 1991 and 1994 appointees is, thus, misplaced.
29. The High Court fell into grave error in not appreciating that Rule 5 of the 1991 Rules operates where service rules provide for appointments by direct recruitment only. Rule 6 and Rule 7 of the 1991 Rules also have no application as these rules provide for determination of seniority where appointments are made by promotion only from a single feeding cadre or only from several feeding cadres. These appeals are not concerned with the determination of inter se seniority between the promotees.
30. Rule 8 of the 1991 Rules makes a provision for determination of seniority where according to service rules appointments are made both by promotion and by direct recruitment. The marginal note of rule 8 "seniority where appointments by promotion and direct recruitment" and the body of sub-rule (1) of Rule 8 that provides, "where according to the service rules appointments are made both by promotion and by direct recruitment", leave no manner of doubt that rule 8 of the 1991 Rules would govern the controversy in the present case since 1980 Rules clearly provide for appointments to the posts of Deputy Jailor by two sources i.e., by direct recruitment as well as by promotion.
31. It is true that the controversy in hand relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor, one appointed in 1991 through the selection made by the Selection Commission and the other in 1994 by the U.P. PSC and the controversy does not relate to determination of inter se seniority between direct recruitees and the promotees, but that does not take away the applicability of Rule 8 of the 1991 Rules. It is so because in the 1991 Rules, the basis of categorization for the purpose of determination of seniority is the method and manner for appointments in the service rules. It is in this view of the matter that Rule 5, Rule 6, Rule 7 and rule 8 of the 1991 Rules provide for determination of seniority amongst different categories of appointments made under the service rules. Once it is held that Rule 8 is applicable for determination of inter se seniority amongst 1991 and 1994 recruitees to the posts of Deputy Jailor, it is clear that their seniority has to be determined on the basis of their substantive appointments.
32. Insofar as the present controversy is concerned, none of the provisos to sub-rule (1) is attracted since the appointment orders of 1994 appointees do not specify the back date nor these appeals are concerned with a situation where 1991 appointees failed to join on time. These appeals are also not concerned with seniority inter se of persons appointed on the result of one selection through direct recruitment or through direct recruitment and promotion in one selection and, therefore, provisions of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1) of rule 8 in unambiguous terms states that the seniority of persons, subject to the provisions of the sub-rules (2) and (3), shall be determined from the date of the order of their substantive appointments.
33. 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 (1991 and 1994 appointees by direct recruitment) what is relevant is the date of the order of their substantive appointment and since the substantive appointment of 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees.
9. Thereafter, in paragraph 45, his lordship summarized the legal position with regard to determination of seniority in services. Paragraph 45 of the said judgment reads as:-
"45. 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."
10. In a separate judgment, Justice Aftab Alam concurred with the conclusions drawn by Justice R.M. Lodha, but for his own reasons. In the very first paragraph of his judgment (paragraph 50) his lordship states:-
"50. I have had the benefit of going through the judgment prepared by my brother Lodha J. The judgment deals with all the relevant facts and the statutory provisions and by application of rule 8 of the Uttar Pradesh Government Servants Seniority Rules, 1991 (the 1991 Rules) concludes that the appellants who were appointed as Deputy Jailers in 1993 (on the basis of the selection process that commenced on October 27, 1990) would rank senior to the first respondent who was appointed in 1994, even though in his case the selection process had commenced much earlier on 26-12-1987. I too reach the same conclusion but by a different way and for slightly different reasons. "
11. His lordship in his judgment differs regarding applicability of Rule 8 of Seniority Rules of 1991. Relevant paragraphs of the judgment of Justice Aftab Alam reads as follows:-
"53. I am completely unable to see how the facts of this case can be squeezed to fit into the proviso to Rule 5 of the 1991 Rules. An indication of the kind of cases to which the proviso would apply is given in the explanation to it. Further, in service law it is not unknown (especially in cases where recruitments are made regularly and the selection process is not inordinately prolonged) that even while a select list is alive and it is yet to be completely exhausted another select list on the basis of the next selection comes into being and appointments are made from that list. In such a situation certain vacancies relatable to the previous selection may still be filled up from the waiting list/unexhausted previous list and in those cases even though the appointment might take place later, by virtue of the proviso in question, the candidate from the previous list would rank senior to the candidate appointed from the third list. To my mind, the proviso relied upon by the High Court has no application to the facts of this case where the two appointments, based on selections made by two different agencies, are separated by a gap of two and a half years.
54. In my brother's judgment, Rule 5 is discarded in preference to Rule 8 of the 1991 Rules because the post of Deputy Jailer is open to two modes of recruitment, one direct and the other by promotion from amongst the permanent Assistant Jailers (vide Rule 5 of the 1980 Rules). It is pointed out that Rule 5 of the 1991 Rules begins by expressly stating, "Where according to the service rules appointments are to be made only by the direct recruitment...." On the other hand Rule 8 begins by saying, "Where according to the service rules appointments are made both by promotion and by direct recruitment...." And under Rule 8, seniority is to be determined on the basis of the date of the order of the substantive appointment. Applying the date of substantive appointment as the basis to determine seniority the appellants would indeed rank senior to Respondent no.1.
55. With full respect, however, I am unable to persuade myself in regard to the application of Rule 8 of the 1991 Rules to the facts of the case. The facts of the case are extraordinary and they seem to me, to fall completely outside the provisions of the 1991 Rules. An attempt to fit those facts into any of the provisions of the 1991 Rules would, to my mind, amount to doing violence to the Rules. The 1991 Rules were not made exclusively for the Jail Executive Subordinate Service (to which the post of Deputy Jailer belongs) but those rules apply to all government servants for whose recruitments rules are framed under the proviso to Article 309 of the Constitution. In making rules of general application it is not possible to take into account a situation that is way out of the normal.
58. The newly formed Selection Commission issued an advertisement on 27-10-1990, for filling up 60 posts of Deputy Jailer. It completed the selection process and sent the select list to the State Government in 1991 and on that basis the appellants were appointed vide appointment letter dated 23-11-1991 issued by the State Government. At this stage, it is important to note that in terms of the advertisement issued by the Selection Commission on 27-10-1990, there was nothing to prevent those (including respondent no.1) who might have applied in response to the earlier advertisement by the UPPSC to also apply for the 60 vacancies under the later advertisement by the Selection Commission.
59. When this aspect of the matter was pointed out, it was stated on behalf of the respondents that by the time the later advertisement by the Selection Commission was issued on 27-10-1990 some of the applicants before the U.P. PSC had become overage and were no longer eligible to apply. There are no details available as to how many of the 144 candidates appointed from the select list of the U.P. PSC had become overage by the time the advertisement of the Selection Commission came on 27-10-1990; even in the case of respondent no. 1 it is not stated clearly and definitely that he was unable to apply in response to the advertisement of 27-10-1990, issued by the Selection Commission because by that time he had become over age. Be that as it may, this aspect of the matter is only incidental and it is recalled simply to point out that it is not open to the respondents to contend that the position in which they are placed is the result of circumstances over which they had no control and to make an appeal in the name of equity.
60. The purpose in recapitulating the facts of the case is to show that the situation arising from the two sets of appointments and the resultant dispute of seniority is highly anomalous. It should be accepted as such instead of trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules were not designed to resolve a dispute of seniority arising from such facts. If I put on the cap of the rule maker I cannot imagine myself conceiving of a fact situation of this kind and making a provision to meet the contingency."
After holding that Rules of 1991 would not be applicable on the controversy, for the purpose of fixing inter se seniority, Justice Aftab Alam held:-
"61. 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.
62. As a matter of fact this principle is fully dealt with in the main judgment in which reference is made to the decisions of this Court in Ram Janam Singh v. State of U.P., (1994) 2 SCC 622; Uttaranchal Forest Rangers' Association (Direct Recruit) & Ors v. State of U.P. & Ors., (2006) 10 SCC 346; State of Bihar & Ors. v. Akhouri Schindra Nath & Ors. 1991 Supp (1) SCC 334 and the principle is summarized in sub-paragraphs (2) & (4) of paragraph 30 of the judgment.
63. To the decisions referred to on this point in the main judgment I may add just one more in Suraj Prakash Gupta Vs. State of J & K, (200) 7 SCC. 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 SCC para 18 of the decision of the Court framed one of the points arising for consideration in case as follows: (SCC p.578) "18. ...........(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? "
This Court answered the question in the following terms: (Suraj Prakash Gupta Case, SCC p. 599, paras 80-81) "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, Krishna Iyer, J. stated: (SCC p.325, para 32) 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, 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 that slots cannot be kept reserved for the direct recruits for retrospective appointments."
64. In conclusion I would say that in the facts of this case the issue of seniority between the appellants and respondent no. 1 must be decided on the basis of the aforesaid principle and there is no need to refer to rule 8 of the 1991 Rules. By this way I also hold that respondent no.1 cannot claim seniority over the appellants and the appellants would rank senior to respondent no.1. "(emphasis added)
12. Thus, though Justice Aftab Alam concluded that Rule 8 would not be applicable in such a situation as it is not framed to address the situation as had arisen in the case, still his lordship also ultimately concluded that the persons appointed earlier in a service would be senior to the persons appointed later in the service.
13. Dr. L.P. Mishra, learned counsel for petitioners, strongly relies upon the judgment of Justice Aftab Alam in support of his case. His submission is that his lordship reached the said conclusion on the basis of the reason given in paragraph 58 of the judgment which states that the persons, in the said case, who were appearing on the basis of the earlier advertisement, also had an opportunity to appear on the basis of the advertisement made later. It was held that their failure not to apply under the later advertisement cannot go in their benefit and thus it is not open for them to contend "that the position in which they are placed is the result of circumstances over which they had no control and to make an appeal in the name of equity." Dr. L.P. Mishra strongly submits that facts of the present case are different as the first advertisement in the present case was a regular advertisement under which petitioners who are general candidates applied for selection. The second advertisement, which took place later and on the basis of which appointments were made earlier, was a special selection for recruitment of Scheduled Caste and Scheduled Tribes candidates. Petitioners, being general candidates, were not in a position to apply under the said special selection for Scheduled Caste and Scheduled Tribes and, therefore, their case is not covered by the judgment of Pawan Pratap Singh's case (supra). Dr. Mishra, thus, submits that in the present case in fact the judgment of Justice Aftab Alam favours petitioners and petitioners are entitled for seniority over respondents who are selected through a special selection process.
14. In reply, learned counsels for respondents Dr. Kalia submits that judgment of Pawan Pratap Singh's case (supra) squarely covers the entire dispute. He strongly relies upon the judgment of Justice R.M. Lodha. His submission is that in the present case Rule 8 of Seniority Rules of 1991 applies which provides for a manner in which the seniority is to be decided.
15. I have heard counsels for the parties. In his judgment Justice R.M. Lodha, after considering the law with regard to issue of seniority, in paragraph 45 has laid down the principles on which the same can be fixed. Clause 3 and 4 of the paragraph 45 of the said judgment is relevant for our purpose. In clause 3, referring to grant of notional seniority from back date his lordship has held that it must be based on a valid classification and "must be traceable to the statutory rules." Similarly in clause 4 his lordship held that the seniority cannot be given retrospectively "unless it is so expressly provided by the relevant service rules". Therefore, Justice R.M. Lodha in his judgment specifically held, that, any retrospectivity can only be given by way of specific service rules, which are based on objective consideration and on a valid classification.
16. In paragraph 61 of his judgment, Justice Aftab Alam has also come to the same conclusion when he concludes:-
"One cardinal principle for determination of seniority is that unless provided for in the rules, seniority cannot relate back to a period prior to the date of incumbent's birth in the service/cadre."
17. The principle of law is, therefore, common in both the judgments and finally settled by the Supreme Court is, that, any retrospectivity in the seniority or in the date of appointment can only be given when it is provided for in the service rules. Thus, admittedly, in the present case, there is no service rule which provides for seniority or date of appointment to relate back to any period prior to the incumbent's birth in service/cadre. So far as the applicability of Rule 5 and its proviso to the Rules of 1991 is concerned, both his lordships found that the same is not applicable. Thus, since in the present case there is no such rule, carving out an exception to the general rule of date of appointment being relevant date for fixing seniority, as is held in the judgments of both Hon'ble Judges in Pawan Pratap Singh (supra) case, it is not possible to accept the submissions of the learned counsels for petitioner. The aforesaid judgment of Pawan Pratap Singh (supra) case holds good till date and has been referred to/relied upon in the following judgments:-
"(i) (2017) 13 SCC 575; Union Of India Vs. N.C. Murali;
(ii) (2014) 14 SCC 720 State of U.P. Vs. Ashok Kumar Srivastava);
(iii) (2012) 13 SCC 340 Union of India Vs. N.R. Parmar;
(iv) (2013) 8 SCC 693 P. Sudhakar Rao Vs. U. Govinda Rao and Ors.(350)."
17. Sri K.S. Pawar, learned counsel for petitioners in his submission relied upon the judgment in A.P. Public Service Commission Hydrabad and Another Vs. B. Sarat Chandra and Others reported in (1990) 2 SCC 669. The said case is with regard to the fixing the date on which the minimum age is required to be achieved. He places reliance upon the word 'selection' as described in paragraph-7 of the said judgment. I do not find the said judgment to be applicable in the facts of the present case. Sri Pawar further places reliance upon the judgment in case of Balwant Singh Narwal and Others Vs. State of Haryana and Others, reported in 2008 (7) SCC 728. In the said case, all the persons belonged to the same batch of selection and there certain persons could not be appointed due to the stay order passed in their cases. The Court granted relief in view of fact that they all belonged to the same batch of selection and seniority was given on the basis of merit list prepared by the Commission. Therefore, the facts of the said case are also entirely different and therefore, said judgment is also not applicable in the facts of the present case. He further places reliance upon judgment in case of V.T. Khanzode and Others Vs. Reserve Bank of India and Another reported in (1982) 2 SCC page 7. Facts of the said case are also entirely different, as there also statutory scheme was framed which was given a retrospective applicability. In the present case, there are no rules at all applicable to the given circumstances. He again places reliance upon judgment in case of Union of India and Others Vs. Sandip Kumar Roy and Others reported in 2016 SCC OnLine Delhi 2962: (2016) 230 DLT 463. The same is a case of promotion where a person was given promotion in the year 2009 while his juniors were promoted in the year 2007 on account of fortuitous circumstances and not of competitive in merit. In given facts, the Court had granted certain reliefs. However, the said case is applicable with regard to the promotion and hence, facts of the said case are entirely different as there the persons juniors were promoted and persons seniors were not promoted.
18. Since, the counsels for petitioners could not place before this Court any statutory rules by which exception can be drawn to the general rules for fixing seniority from the date of appointment in service, the relief claimed by the petitioners cannot be granted.
19. The writ petitions are dismissed. Interim orders, if any, are vacated.
Order Date :- 22.05.2018 Arti/-
(Vivek Chaudhary, J.)