Allahabad High Court
Girish Chandra Srivastava vs State Of U.P. And Ors. on 24 October, 2003
Equivalent citations: (2004)1UPLBEC310
JUDGMENT Sunil Ambawani, J.
1. A final seniority list of Excise Inspectors of the U.P. Excise Department dated 20.6.2003 is under challenge in all these writ petitions. These parties can be classified into six groups. Writ Petition No. 31185 of 2003 between Ravindra Kumar Nigam v. State of U.P. is filed by Excise Inspector appointed by direct recruitment to the post in 1994. (First Group) Writ Petition No. 26863 of 2003 between Promod Dhawan and two Ors. v. State of U.P., Writ Petition No. 26936 of 1993; between Hart Lal v. State of U.P., Writ Petition No. 32548 of 2003 between Rajesh Kumar Tandon v. State of U.P. No. 32548 of 2003 between Suresh Kumar Tandon v. State of U.P, and No. 28444 of 2003 between Arun Kumar Saxena v. State of U.P. have been filed by Sub-Inspectors in State Excise Department who were promoted as Excise Inspector on 17.11.1992. (Second Group) Writ Petition No. 26937 of 2003 between Girja Shankar Singh and two Ors. v. State of UP., has been filed by Excise Inspectors who were promoted from the post of routine grade Clerks/Reference and Accounts Clerks. (Third Group) Writ Petition No. 30988 of 2002 between Udham Singh v. State of U.P. has been filed by Excise Inspector promoted from the post of routing grade clerk on 22.11.1972 and thereafter senior clerk on 28.9.1978. senior assistant on 18.1.1992 and thereafter as Excise Inspector on 17.12.1992. (Fourth Group) Writ Petition No. 32066 of 2001 between Girish Chandra Srivastava v. State of U.P. and No. 32068 of 2001 between Girja Shankar Singh v. State of U.P., is by an Excise Inspector promoted from the post of routing grade clerk, on 17.11.1992 (Fifth Group). The sixth group is of retrenched employees of other departments absorbed directly as Excise Inspectors, who are not represented.
2. The recruitment and promotion of Excise Inspectors in the U.P. Excise Department was regulated by U.P. Subordinate Excise Service Rules, 1976, made under the proviso to Article 309 of the Constitution of India for regulating the service condition of U.P. Subordinate Excise Service. Rule 4 provided for the strength of the service, and Rule, 5, the source of recruitment. Three sources were provided for recruitment to the service i.e., (a) by direct recruitment of candidates, on the result of a combined competitive examination conducted by the Commission, (b) by promotion of permanent clerks of the Office at the headquarters of the Excise Commissioner, and other regional and subordinate excise offices of the Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh and (c) by promotion of permanent Tari Supervisors, Rules 7 authorized Excise Commissioner to decide the number of candidates to be recruited from each of three sources specified in Rule 5. In deciding the question regard was to be paid to the relative number of promoted and directly recruited persons in the cadre of the service, and in an case not more than ten percent of the candidates to be recruited in any one year, were to be recruited by promotion, each from source (b) and (c) respectively, if suitable candidates were available Rule 27 provided seniority in the service to be determined by the date of the order of appointment in substantive vacancies, provided if two or more candidates were appointed on the same date, their inter-se seniority was to be determined according to the order in which the appointments were made under Rule 26 (2). These Rules were superseded by Uttar Pradesh Subordinate Excise Service Rules, 1983. Rule 4 of these Rules provided the cadre strength to be determined by the Governor from time to time and Rule 5 provided for recruitment to various categories of post in the U.P. Subordinate Excise Service to be made from following sources; (a) Excise Inspector, (i) 90% by direct recruitment on the result of a combined competitive examination conducted by the Commission, (ii) 10% by promotion from amongst the permanent Sub-Excise Inspectors; (b) Sub-Excise Inspectors (i) 77% by direct recruitment (ii) 10% by promotion from amongst from Tari Supervisor who have passed High School examination and have put in at least ten years of service including temporary service as such, and (iii) 13% by promotion from amongst service of Head Constable/Excise Constables posted in the Office of Excise Commissioner, U.P. and subordinate officers who have passed High School examination and have put in at least ten years of service including temporary service as such. A proviso to Rule 5 provided that if suitable and eligible persons are not available for promotion, the posts may be filled by direct recruitment. Rule 27 provided for relaxation of conditions of service. These Rules were again superseded by the U.P. Subordinate Excise Service Rules, 1992 notified on January 7, 1992, which, presently regulate the service conditions. Rule 4 of these Rules provided for strength of the cadre of the service and the each of category of post to be determined by the Governor from time to time, Rule 5 provides for sources of recruitment. Rule 16 provides for procedure for recruitment by promotion through the Selection Committee. Rule 17 provides for combined select list for any year of recruitment, to be prepared by taking the names of candidate from the relevant list in such cyclic order with the prescribed percentage to maintain the first name in the list being the person appointed by the promotion under Rule 16. Rule 21 provides the seniority to be determined from amongst the persons substantively appointed in any category of posts, in accordance with the U.P. Government Servants Seniority Rules, 1991 (in short Seniority Rules, 1991) as amended from time to time, Rule 27 provides for relaxation from condition of service Rules 5, 21 and 27 relevant for present matter are quoted as below :--
"5. Source of recruitment.--Recruitment to the various categories of posts in the service shall be made from the following sources--
(a) Excise Inspector-- (i) eighty per cent by direct recruitment;
(ii) ten per cent by promotion from amongst the permanent Sub-Excise Inspector; and
(iii) ten per cent by promotion from amongst such persons who are substantively appointed Senior Assistants and Stenographers Grade-II of the Excise Department on the first day of the year of recruitment :
Provided that if in any year of recruitment sufficient number of suitable eligible persons are not available for promotion, the field of eligibility may be extended to include, the following persons, in the order given below :
(a) Substantively appointed Senior Clerks and Stenographers Grade-III who have completed ten years service as such on the first day of the year of recruitment; and
(b) Substantively appointed Junior Clerks, who have completed fifteen yeas service as such on the first day of the year of recruitment.
Note.--(i) The first nine vacancies under the promotion quota under Clause (iii) of Sub-rule (I) will be filled in by promotion from amongst Senior Assistants, Senior Clerks and Junior Clerks as the case may be and the 10th vacancy will be filled by the promotion from amongst the Stenographers Grade-II and III, as the case may be.
(ii) The eligibility list for promotion under class (iii) of Sub-rule (I) shall be prepared on the basis of seniority as determined under the Excise Department Ministerial Service Rules, 1980.
(2) Sub-Excise Inspector :
(i) Seventy Seven percent by direct recruitment.
(ii) ten percent by promotion from amongst substantively appointed Tari Supervisors who have passed High School Examination and have completed ten years service as such on the first day of the year of recruitment; and
(iii) thirteen percent by promotion from amongst High School passed substantively appointed Excise Head Constables and Excise Constables who have completed ten years service including service on the post of Excise Constable, on the first day of the year of recruitment;
Provided that if suitable eligible persons are \not available for promotion, the posts may be filled by direct recruitment.
21. Seniority.--(I) The seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991 as amended from time to time.
(II) Notwithstanding anything contained in the Uttar Pradesh Government Servants Seniority Rules, 1991, persons covered by Government Order No. 6007-E/XIII-04-60, dated November 21, 1960 shall be placed for seniority next below the Excise Inspectors for approved for appointment by the Commission before November 21, 1960 and inter se seniority of such persons referred to in the said Government Order shall be determined on the basis of continuous length of their service and where length of service of two or more such persons is the same persons older in age shall be senior.
27. Relaxation from the condition of service.--Where the State Government is satisfied that the operation of any Rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the Rules applicable to the case, by order, dispense with or relax the requirements of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."
3. Before dealing with rival contentions of the parties, who have challenged fixation of their seniority, in the final seniority list dated 20.6.2003, it is relevant to refer to some of the cases decided by this Court and Supreme Court in the matter of appointments and seniority of Excise Inspectors in the department. Civil Misc. Writ Petition No. 13704 of 1983, between Ram Sewak Prasad v. State of U.P., was decided by Supreme Court on 11.7.2001, reported in the AIR 1991 SC 1988. Petitioner Ram Sevak Prasad, in this said writ petition before Supreme Court, was appointed as Excise Sub-Inspector in February, 1964, promoted as Excise Inspector on ad hoc basis on February 24, 1972. He was confirmed as Sub-Inspector on 2nd December, 1992 with effect from April, 1967. Although promoted on ad hoc basis he was continuously working as Excise Inspector since February 24, 1972. Respondents Raghuvir Singh and Ramdin were direct recruits on the post of Excise Inspector and had joined on March 29, 1972 and May 14, 1972 respectively. They were promoted as Excise Superintendent on 29th September, 1993. Petitioner Ram Sewak Prasad was not considered for promotion to the post of Excise Superintendent. He was not even shown in the seniority list of Excise Inspectors. He filed writ petition claiming promotion on the strength of his ad hoc services. The State Government defended the matter in stating that petitioner's promotion to the post of Excise Inspector was against the Rules. He was appointed on ad hoc basis and thus he was not shown in the seniority list, and was not considered for promotion as Excise Inspector. The Supreme Court after considering 1967 and 1983 Rules held, that Rule 21 (I) of 1983 Rules specifically permits substantive appointment to the cadre of Excise Inspector with back date. The framers of 1983 Rules was conscious that cadre of Excise Inspector was in existence from 1963 onwards and some of them, were promoted as Excise Inspector at the time of enforcement Rules of 1983, and in order to do justice to persons like petitioner, provision of back dated appointment was made in 1983 Rules. The department was directed to appoint petitioner as Excise Inspector under 1983 Rules, by giving him promotion w.e.f, February 24, 1972.
4. Civil Misc. Writ Petition No. 6904 of 1987 between U.P. Excise Subordinate Ministerial Association and two Ors. v. U.P. Public Service Commission, Allahabad through its Chairman was decided on 10.11.1996. A Special Appeal No. 7340 of 1997 between State of U.P. v. State Excise Subordinate Officers Ministerial Association and Ors., against the judgment was dismissed by Supreme Court on 14.9.2000. In these petitions the clerks of the subordinate offices claimed promotion. They were drawing same scale of pay as the clerks of the Head Office. They prayed that their seniority be drawn up by the departmental authorities, in accordance with the Rules 21 of the Recruitment Rules, read with U.P. Government Servants Seniority Rules, 1991 as amended from time to time. The High Court relying upon Rule 21 in the 1992, and the Seniority Rules of 1991, set aside the seniority list drawn by the Excise Commissioner. The Court found that before the enforcement of Recruitment Rules, though the selection to the post of clerks in Excise Department was held on combined basis and on the basis of merit obtained in the test, the appointment order were issued, posting them either to the Head of Office, or to the subordinate offices according to the discretion of the employer. The definition of 'service' under Rule 3 (f) and the 'cadre of service' in Rule 4, made no distinction between the clerks of head office and clerks of subordinate offices, as they were appointed and included in the same cadre strength given in Item No. 5 of the appendix to the Rules. Taking into account Rule 5 of the Seniority Rules, 1991, their seniority had to be determined as it was shown in the merit list prepared by the Commission or the Committee, as the case may be. Their inter se seniority, therefore, had to be determined on the basis of Rule 5 of the Seniority Rule, 1991. A direction was issued by this Court to draw fresh seniority list in accordance with the merit at the time of recruitment, irrespective of the fact whether the person was posted in head office or in other offices. The order was confirmed by Supreme Court.
5. One Lal Bahadur Misra, Excise Inspector filed objections to tentative seniority list dated 25.1.2003 on the ground that he was selected on the basis of advertisement issued in 1987, for which a written examination was held in 1989, result declared in 1993, and he was appointed as Excise Inspectors in 1994. He claimed seniority w.e.f. 1987. The Excise Commissioner, U.P. by his order dated 29.3.2003 decided petitioner's representation in pursuance of direction of this Court dated 20.2.2003, in Writ Petition No. 8334 of 2003, and held that the examinations to be held in 1987, was delayed. He was appointed in 1994, and thus, he could not be considered for seniority alongwith the promotees in 1992-93, and that the seniority was rightly fixed in accordance with Rule-8 (iii) of the Seniority Rules of 1991. These Rules provide that seniority has to be determined from the date of substantive appointment, and since Sri Lal Bahadur Misra was appointed on 16.2.1994, his seniority was rightly fixed.
6. Rule 21 of the U.P. Subordinate Excise Service Rules, 1992 provide for determination of seniority of persons substantively appointed in any category of post to be determined in accordance with the Seniority Rules, 1991. They are applicable to all Government servants. There Rules have been made under the proviso to Article 309 of the Constitution of India. Rule 5 provide that where, according to service Rules, appointments are made only to the direct recruitment, their inter-se seniority by the persons appointed on 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 Rules 6 provides for seniority where appointment are made by promotion for single feeding cadre. Rules-7 provides for determination of seniority where appointment are made by promotion only from several feeding cadres. Rules 8 provide for seniority where appointments are made by promotion or by direct recruitment. In the case of appointment by promotion, Rule 6 provides inter se seniority of a person appointed shall be same as it was in the feeding cadre and their seniority in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre and in the cadre to which they are promoted, is regained, as it was in the feeding cadre. In case of promotion from several feeding cadres, Rule 7 provides, that their inter se seniority, appointed on the result of any one selection, shall be determined in accordance with the date of the order of their substantive appointment in their respect feeding cadre. Where the order of substantive appointment in the feeding cadre specifies any particular back date, that date will be deemed to be the date of order of substantive appointment and in other cases, it will amount the date of issuance of the order. The first proviso provides that where the pay scale of the feeding cadre are different, the person promoted in the feeding cadre having higher pay scale shall be senior to the persons promoted from feeding cadre, provided further that a person appointed on the result of a subsequent selection shall be junior to a persons appointed on the result of prior selection. Rule 8 is also relevant for the purpose of this case. According to these service Rules appointments are made both by promotion and by direct recruitment. The seniority of persons appointed is to be subject to the sub-rules determining from the date of order of their substantive appointment and when two or more persons are appointed together, in the manner their names are shown in the order. Sub-Rule (2) provide that seniority inter se of the persons appointed on the result of anyone selection (a through direct recruitment shall be the same as it is shown in the merit list prepared by the Commission or the Committee as the case may be, (b) by promotion, shall be determined in accordance with principles laid down in the Rule 6 or Rule 7 as the case may be and Sub-rule (3) provides that where appointments are made by promotion or direct recruitment and on the result of anyone selection, the seniority of the promotees and direct recruitment shall be determined in a cyclic order. Rule 8 is quoted as below :
"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, will mean the date of issuance of the order :
Provided further that a candidate recruited directly may lose his seniority if he fails to join without valid reasons, when vacancy is offered to him the decision of the Appointing Authority as to the validity of reasons shall be final.
(2) the seniority inter se of persons appointed on the result of any one selection,--
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotions 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 promotion 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 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 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."
7. Now, coming to the contentions of the respective groups, Sri A.K. Gupta, appearing in Writ Petition No. 26863 of 2003, 32548 of 2003, on behalf of petitioners appointed as Sub-Excise Inspectors, submits that in the Rules of 1967, 80% posts of Excise Inspector were to be filled by direct recruitment, 10% from the Clerks working in Headquarters and Subordinate Offices and 10% from Tari Supervisor. In the Rules of 1983, which came into force from 24.3.1983, 90% posts of Excise Inspector were provided to be filled by direct recruitment and 10% from the permanent Sub-Excise Inspectors. The source of promotion from Tari Supervisor was given up in Rules of 1992, which came into force on 7.1.1992, 80% posts were reserved for direct recruitment, 10% for permanent Sub-Excise Inspectors and 10% for promotion from Senior Assistants and Stenographers of Excise Department. There was 30 vacancies on the post of Excise Inspector under the quota of Tari Supervisor which could not be filled up due to non-availability of Tari Supervisor from 1972 to 1982-83. The Excise Commissioner sought approval of the State Government to fill up these 30 vacancies by filling 20 from Clerks and 10 from Sub-Excise Inspectors by his letter dated 29.8.1992. The State Government by sanction dated 13.10.1992, directed Commissioner, Excise U.P. to fill up these vacancies under the quota provided in 1992 Rules from Sub-Excise Inspectors and Clerks, the Department proposed to fill up 15 posts each from Sub-Inspectors and Clerks. The petitioners were promoted in these fifteen vacancies on 17.11.1992 and on the same date fifteen Clerks were promoted as Excise Inspector. Subsequently Excise Inspector were appointed by direct recruitment on 16.2.1994. A final seniority list was issued for Excise Inspector in 1994 which was not challenged. In this list petitioners were at Serial No. 277 to 307 and Sub-Excise Inspectors promoted on 17.11.1992 were shown from Serial No. 278 to 306. Direct recruits of 1994 were shown from Serial No. 320, down wards. On 30.8.2001 another tentative seniority list was issued maintaining the same position. In this list petitioners were placed at Serial No. 41, 47, 67 and 43 and the names of direct recruits in 1994 were shown from Serial No. 75, down wards. A Committee was constituted to finalize the seniority list under the Chairmanship of Excise Commissioner and that final seniority list was prepared on 27.12.2002, maintaining the same position. An amended seniority list was issued on 25.1.2003. This also maintained the same position. The Excise Commissioner sought clarification from State Government by his letter dated 19.4.2003, regarding the seniority of persons who were appointed on 17.11.1992, from Clerks and Sub-Excise Inspectors under the quota of Tari Supervisor. There were thirteen retrenched employees of Chal Chitra Nigam and Horticulture Department who were appointed on 23.12.1992. Their Seniority had to be counted on the date of their appointment. The impugned final seniority list dated 20.6.2003, illegally unsettled the entire position of placing direct recruits of 1994 at Serial No. 60 to 196 and 198 to 211, whereas they were admittedly appointed later and have been placed above petitioners. The petitioners have been placed at Serial No. 197, 212, 224, 202 respectively. It is contended that the Excise Commissioner acted illegal, arbitrarily and against the Seniority Rules of 1991, in changing seniority position which was rightly obtained from 1994 onwards.
8. Sri Ashok Khare, Senior Advocate assisted by Sri Krishna Murari appearing in Writ Petition Nos. 26937 of 2003, addressed the Court on behalf of Excise Inspectors who are promoted from Clerks. These petitions were appointed on the post of Routine Grade Clerks on the basis of competitive examination between 1971-73. They were thereafter promoted to the post of Reference Clerk and then as Senior Assistants under Rule 5(A)(iii) of the Rules of 1992. There were promoted as Excise Inspectors after selection by Selection Committee constituted for that purpose. Their promotion orders were issued on 17.11.1992. They were confirmed on 7.3.1996, w.e.f., 1.4.1996. It is contended that by allowing Writ Petition No. 6904 of 1987, between U.P. Excise Subordinate Officers Ministerial Association through its President v. State of U.P., this Court directed respondents to prepare a fresh seniority list of Clerks within six months and to grant notional benefits of promotion and other consequential benefits. The judgment was confirmed by the Supreme Court. The respondents instead reverted petitioners and other such persons from the post of Excise Inspector to the grade of Clerk. Writ Petition Nos. 32066 of 2001 and 32068 of 2001, were filed by petitioners No. 1 and 2, which were admitted and the operation of impugned order dated 1.6.2001 was stayed. He submits that petitioners filed objections to the tentative seniority list dated 30.8.2001. In this seniority list petitioners were placed below the direct recruits of 1994. Their objections were allowed. In the seniority list dated 27.12.2002, they were placed above the direct recruits of 1994. The State Government issued another seniority list dated 25.1.2003, in which persons promoted and appointed as Excise Inspectors on 17.11.1992, i.e., from Clerk cadre were kept above the direct recruits appointed on 16.2.1994. One of the direct recruit namely Lal Bahadur Misra, file writ petition in which directions were issued to decide his representation. The Excise Commissioner by his order dated 29.3.2003, decided his objections and held that persons appointed on 17.11.1992, have to be placed above the direct recruits appointed on 16.2.1994. Sri Ashok Khare has also defended the selection proceeding held in the year 1992, in which 30 vacancies to be filled from Tari Supervisor were filled by promoting 15 Senior Assistants and 15 Sub-Excise Inspectors. He submits that these directions were never challenged and thus, these directions have become final. The direct recruits cannot challenge the appointments made of 17.11.1992. He submits that State Government was authorised under the Rules of 1992, published on 7th January, 1992, to grant relaxation to any category of persons. Rule 27 authorised the State Government, if it was satisfied that the operation of any Rule regulating the conditions of service causes, undue hardship in any particular case, the State Government could notwithstanding anything contained in the Rules applicable to the case, by an order dispense with or relax the requirement of that Rule. According to Sri Khare, the Excise Commissioner sought approval of the State Government to fill up 30 vacancies of Tari Supervisors by offering 20 posts to Clerks and 10 posts to Sub-Excise Inspectors. According to him by order dated 13.10.1992, the State Government granted its approval, which amounts to an exemption under Rule 27 of Rules of 1992. A Selection Committee proceeded to make selections in accordance with the orders of the State Government dated 13.10.1992 and the thirty vacancies were filled from the clerical cadre as well, as cadre of Excise Sub-Inspectors. The Excise Commissioner in his discretion divided these posts equally between these two classes.
9. Sri Khare, further submits and relies upon third Proviso to Rule 8(3) of the Seniority Rules of 1991 and submits that the vacancies reserved for Tari Supervisors were filled under the Rules by giving relaxation from other sources namely clerical cadre, and the cadre of Sub-Excise Inspectors and in such case, the persons appointed in excess of quota shall be given seniority of that very year, as they were appointed against the vacancies of their quota. Sri Khare submits that with the relaxation granted by the State Government by its order dated 13.10.2002, which was so understood by the Selection Committee and Excise commissioner at that time, the vacancies were filled up from clerical cadre and Sub-Excise Inspector and that the seniority has to be counted under the above Rule from the year when they were appointed. Consequently, he submits that the seniority of Excise Inspectors promoted from ministerial cadre shall be counted when they were promoted in substantive capacity w.e.f. 17.11.1992.
10. Sri Shashi Nandan assisted by Sri Anoop Trivedi appears for direct recruits. He has also made submissions to quash the seniority list dated 20/21.6.2003 and the order dated 21.6.2003 passed by Excise Commissioner, U.P. Allahabad and has prayed for further directions to the effect that Excise Inspectors, placed from Serial No. 30 to 37 and 39 to 41, in the impugned seniority list, be directed to be placed below petitioners and other direct recruits selected in the year 1994 and further to direct the respondents to place 19 persons promoted from the Sub-Excise Inspector in the year 1992, below the petitioners and other direct recruits. He states that the 15 persons promoted from ministerial cadre may also be placed below the direct recruits appointed in the year 1994. He has challenged the promotion of 24 persons from ministerial cadre in the year 1992 on the ground that prior to Rules of 1992, the Rules of 1983, did not provide for any quota for promotion to the person of ministerial cadre. By an order dated 7.8.1990 persons belonging to ministerial cadre, promoted on ad hoc basis, to the post of Sub-Excise Inspector were wrongly adjusted against the vacancies occurring in promotion quota and thus, vacancies filled up by promotion till 1987, were wrongly filled up. He submits that the vacancies occurring only in the years, 1991-92, 1992-93 and 1993-94 could be taken into account for promotion of members of ministerial cadre to the post of Excise Inspectors. These vacancies were calculated to be 29 and hence, in accordance with 10% quota prescribed for such members in the. Rules of 1992, only three persons could be promoted prior to the year 1994. The first Proviso to Rule 8(3) of the Seniority Rules, 1991, provides that where promotion from any source are made in excess of quota they shall be pushed down in seniority, in subsequent year or years, in their vacancies in accordance with their quota and in view of this fact, persons at Serial Nos. 29, 28 and 42 to 54 (promoted from ministerial cadre) should be pushed down in seniority list below the direct recruits With regard to promotions of Sub-Excise Inspectors he submits that 19 persons belonging to Sub-Excise Inspector cadre were wrongly promoted to the post of Excise Inspector in the year 1992. Their quota comes to 46 calculated on the basis of 10% quota prescribed in Service Rules of 1983, as well as 1992. On 30.6.1994, the total strength of the cadre of Excise Inspector as provided in the Appendix was 461. As on 30.6.1994, total number of 68 Excise Inspectors promoted from Sub-Excise Inspector cadre were working and thus, in fact on 30.6.1994, 22 Excise Inspectors were working in excess of the quota of Sub-Excise Inspectors. ,
11. These 22 Sub-Excise Inspectors, according to him were wrongly promoted, as they exceeded their quota and under the first Proviso to Rule 8(iii) of Seniority Rules of 1991, they ought to have been pushed down in the seniority list. The respondents, however, have pushed down only 13 such candidates belonging to Sub-Excise Inspector cadre in the seniority list. These appointments were in violation of service Rules and in excess of the quota and thus, they cannot claim seniority over and above, the candidates appointed by direct recruitment by Public Service Commission and these persons at Serial 55 and 56 have to be pushed down below the direct recruits of 1994. So far as retrenched employees, at Serial 33 to 37 and 39 to 41, are concerned, it is submitted that they were appointed to the post of Excise Inspector in 1992, against the vacancies which were approved after 1987 and was accepted in 1992. These persons were appointed by a special drive for direct recruitment to the post of Excise Inspector. Whereas petitioners were appointed by direct recruitment against the vacancies which existed till the year 1987. In determining their inter se, seniority between direct recruits the year in which the vacancies arose has to be taken into consideration and thus, the person falling under the category of retrenched employees appointed by direct recruitment by a special drive in respect of vacancies after 1997, cannot be placed above the petitioners. They have to be treated as persons appointed in subsequent selection and have to be treated junior to petitioners under 2nd Proviso to Rule 5 of the Seniority Rules, 1991.
12. Dr. R.G. Padia, appearing for Sri Uttam Singh in Writ Petition No. 30988 of 2003, submits that Uttam Singh was appointed as Routine Grade Clerk, in the year 1971-72. He was promoted as Excise Inspector by Government Order dated 13.10.1992. He was confirmed on 7.3.1996, in pursuance of directions issued by this Court in writ petition filed by U.P. Subordinate Officers Ministerial Association. The respondents illegally refixed his seniority and reverted him by an order passed by Excise Commissioner on 1.6.2001. However, on the same day i.e., 1.6.2001, petitioner was again promoted as Excise Inspector on notional basis and thus, there is no gap in continuation of service of petitioner, as Excise Inspector. Petitioner filed a writ petition in which a direction was issued to consider and decide petitioner's representation. The said representation has been decided and rejected by Excise Commissioner on 15/16.4.2002. It is submitted that petitioner was no longer a Clerk. He was promoted as Excise Inspector on substantive basis and was duly confirmed., In implementation of the said judgment he could not have been reverted. Refixation of seniority did not permit petitioner to be reverted as Clerk and that he was not given any opportunity of hearing before he was reverted in violation of Article 311 of Constitution of India.
13. Sri Sudhakar Pandey appears for Sri Kamlesh Kumar Srivastava in Writ Petition No. 26937 of 2003. He find place in the seniority list at Serial 48. According to him the concerned respondent No. 5, in this writ petition was in service on 14.7.1980, when the distinction between Clerks of Head Office and Clerks of Subordinate Office was removed. He was appointed as Clerk in the Subordinate Office. Directions were issued by this Court in Writ Petition No. 6964 of 1987, which were confirmed by the Supreme Court providing grant of equal pay scale to the Excise Clerks of Subordinate Offices commensurate with their counterparts in Headquarters, from the date of implementation of recommendations of the Pay Rationalisation Committee. These groups merged into one cadre and were granted notional fixation of scale in which they were placed. It is submitted that during the pendency of Writ Petition No. 6904 of 1987 and Civil Appeal No. 7340 of 1997, for a period of thirteen years, the Excise Commissioner, U.P., issued a final promotion on substantive/permanent appointment orders without preparing the prescribed seniority list of Clerks of Subordinate Offices and head office as required under the Recruitment Rules and Seniority Rules of 1991. The Clerks of Subordinate Offices lost their chances and benefits of promotions which were given to Clerks of Head Office. The promotions of 12 post of Excise Inspector on 5.8.1992 and 10.8.1992 and further 15 posts from clerical cadre on 17.11.1992, without preparing eligibility list as required under Rule 16 of Service Rules, 1992, was ultra vires, the Rules. These 27 Excise Inspector were wrongly promoted ignoring the rights of the Clerks of Subordinate Offices (including respondent No. 5). The Clerks of Head Office at Allahabad were given promotions ignoring the Constitutional rights of concerned respondent No. 5 and large number of Clerks working in Subordinate Offices. Respondent No. 5, Sri Kamlesh Kumar Srivastava was appointed substantively as Clerk on 1.7.1978 and that persons junior to him working in clerical cadre in head office were given promotions. He submits that respondent No. 5, Kamlesh Kumar Srivastava has filed Writ Petition No. 5759 of 1997 which is still pending. He further submits that the order dated 1.6.2000 has been challenged in Writ Petition Nos. 32068 of 2001, 32066 of 2001 and 31206 of 2003 and that until reliefs claimed in these writ petitions are decided, the seniority list cannot be finalised.
14. At that time by issuing notices in these writ petitions petitioners were given liberty to implead such persons who were going to be affected by the order passed in these petitions by making proper application. I also permitted them and gave liberty to advertise the hearing of these writ petitions in Times of India' News Papers in English published from Lucknow and 'Amar Ujala' Allahabad in Hindi on or before 11.7.2003. I am informed that the hearing of these petitions were advertised. One Sri Nar Sangh Prasad promoted from Clerk cadre has also entered appearance through Sri Pradeep Verma in Writ Petition No. 26937 of 2003.
15. The seniority list dated 20.6.2003 has also been challenged on the ground that it has disturbed the seniority, as obtained in the seniority list circulated on 30.8.2001, 27.12.2002 and 25.1.2003 and that objections were not invited and considered before issuing the final seniority list. Objections of mala fides, exercise of powers in circulating final seniority list without inviting and deciding objections have also been taken. It is contended that the department was great hurry to fill up the newly sanctioned posts of Assistant Excise Commissioner and in order to favour certain candidates, the long standing seniority list was disturbed.
16. In the counter-affidavit, it is stated that in pursuance of the orders of Supreme Court in Ram Sewak Ram's case and the orders passed by Division Bench of this Court in Special Appeal No. 7340 of 1997, between State of U.P. and Excise Subordinate Officers Ministerial Association and others against which Special Leave Petition was dismissed by Supreme Court on 14.9.2000, the inter-se seniority had to be determined and thus, the seniority list of Excise Inspectors was reorganized on 30.8.2001. A Committee was constituted to finalize the seniority list under the Chairmanship of Excise Commissioner. Fresh seniority list was prepared on 27.12.2002, which was amended on 25.1.2003, inviting objections which was circulated to all for compliance and that there was no complaint from any persons that they were not aware the seniority list dated 25.1.2003. A clarification was sought from the State Government on 19.4.2003, regarding the seniority of persons who were appointed on 17.11.1992, from Clerks and Sub-Excise Inspectors under the quota of Tari Supervisors and those who were absorbed and appointed on 23.12.1992, as retrenched employees. In this letter it was stated that a number of objections have been received, against the tentative seniority list dated 25.1.2003 and clarification was sought with regard to issues relating to seniority of direct recruits who were appointed in February, 1994, in 100 vacancies as worked out upto the year 1987; the promotions of 7 persons from clerical cadre on 5.8,1992; 2 persons on 10.8.1992 and 3 persons from the cadre of Sub-Excise Inspectors on 5.8.1992, in the vacancies which arose between 1987 to 1994; 30 vacancies for Tari Supervisors filled in by promotion of 15 persons from clerical cadre and 14 persons from Sub-Excise Inspector on 17.11.1992; absorption and appointment of 13 retrenched employees on 2.12.1992 and notional promotion of 5 persons of clerical cadre in the year 2001. The State Government vide its letter dated 9.4.2003 issued guidelines in respect of the aforesaid queries for preparation of final seniority list.
17. Sri Kamlesh Kumar Srivastava, respondent No. 5, in Writ Petition No. 26937 of 2003, in fact, wants implementation of judgment and order dated 10.11.1996 in Writ Petition No. 6904 of 1987, confirmed by Supreme Court on 14.9.2000. He seeks remedy against the Clerks of Head Office and contends that the discrimination pointed out was, in fact, not redressed and that promotions made in 1992, needs review. The seniority was to be re-determined and the benefits given to Clerks of Head Office were required to be withdrawn. The judgment was implemented and consequential reversions and re-determination was made by orders dated 1.6.2001. In case, the desired action was not taken, he can get his rights decided in the Writ Petition No. 5759 of 1997, which is still pending. I am not concerned here with implementation of the judgment and order dated 10.11.1996 and thus, leave the matter open to be considered and decided in his writ petition.
18. The aforesaid correspondence produced on record, shows that the seniority list dated was not finalised. A tentative seniority list was circulated to which objections were received which were taking into account considered and were decided in accordance with guidelines issued by the State Government. The objections of some of petitioners that the seniority list dated 25.1.2003 or any earlier seniority list was final or was not circulated or that objections were not invited and considered, is incorrect and cannot be sustained.
19. With regard to Writ Petitions No. 32066 of 2001 and 32068 of 2001 and 30988 of 2003, in which order dated 1.6.2001, reverting petitioners to clerical cadre is concerned, I find that this order was issued in consequence to the direction given by this Court in Writ Petition No. 6904 of 1987, between U.P. Excise Subordinate Officers Ministerial Association and another v. U.P. Public Service Commission, Allahabad through its Chairman. These directions were confirmed by Supreme Court in its order dated 14.9.2000 in Civil Appeal No. 7340 of 1997. This Court held that the seniority in the clerical cadre has to be determined on the basis of date of substantive appointment as defined in Rule 1(h) of the 1991 Rules. No restriction should be made on the basis of the posting of the persons in the Subordinate Offices and on account of the fact, that they were receiving lesser pay scale. The Court found that seniority has to be determined in terms of Rule 21 of the 1992 Rules and that a fresh seniority list has to be prepared and consequentially they have to be promoted from the date when these candidates became eligible but that will not give them any financial benefits. Seniority list was directed to be prepared within six months. Directions were issued to give same pay scale to the Excise Clerks in the Subordinate Offices commensurate with their counterparts in Headquarters, from the date of implementation of recommendation of pay rationalisation committee, namely when the date these groups merged together. The seniority list was also directed to be prepared a fresh.
20. In compliance an order dated 1.6.2000 was passed by Excise Commissioner. The Excise Commissioner found that in order to carry out the directions of the Court, the orders of promotion dated 5.8.1992 in respect of Clerks cadre (except Stenographers) was required to be cancelled for the purpose of their placement in seniority list. Para 3 of the order provided that the promotion orders after 5.8.1992 and the reversion order passed shall not visit any adverse consequence or withdrawal of pay and allowances or any amount paid to them. In the counter-affidavit of Sri M.L. Verma, Deputy Excise Commissioner (Personnel and Establishment) Excise Headquarters, Allahabad, it is stated that in order to comply with the orders of the Supreme Court and for preparing seniority list on the basis of date of substantive appointment, it was necessary firstly to declare the post filled in promotional quota as vacant and thereafter to proceed with promotions. Only ten percent of the sanctioned posts were to be filled by promotion. It was not possible to prepare a fresh seniority list and thereafter grant promotion without reverting Excise Inspectors to their post in the feeding clerical cadre. In case, reversion orders were not issued, all the other Clerks who were entitled to be promoted over and above, the last Clerk promoted as Excise Inspector had to be promoted, which was against the Rule and was not possible. A fresh seniority list of Clerks had to be prepared on the basis of substantive appointment to the post to take care of changes in the promotion. The consequential orders were issued and thus, those Clerks working in Headquarters who were given the seniority and consequential promotion against the Rules had to be reverted. I find that in order to implement the directions of this Court, which were confirmed by Supreme Court and to prefix the seniority of the Clerks in their cadre and thereafter to give them consequential promotion, it was necessary to issue the impugned orders. The Writ Petition Nos. 32066 and 32068 of 2001, as such have no merits and are dismissed.
21. In the year 1992, Excise Commissioner found that 39 vacancies arose in the cadre of Tari Supervisor from 1971-72, including 12 vacancies on permanent posts and 27 vacancies on temporary posts including the vacancies which were carried forward from the year 1971-72. These 39 vacancies of Excise Inspectors were to be filled up from the cadre of Tari Supervisors in consultation with Public Service Commission. On 16.3.1992, only 9 candidates were found suitable and thus, there were 30 vacancies which could not be filled on account of nonavailability of suitable persons in the cadre of Tari Supervisors. The quota of Excise Inspectors was not provided in U.P. Subordinate Excise Services Rules, 1983. These Rules provided for promotions of Tari Supervisors to the post of Deputy Excise Inspector. The provision of promotion of persons from clerical cadre to the post of Excise Inspector was not provided. The U.P. Subordinate Excise Service Rules, 1992 was notified on 7.1.1992, in which a quota of 10% of clerical cadre for promotion of Sub-Excise Inspector was provided. During the period when Rules of 1983, were in force, from 24.3.1989 to 6.1.1992, the promotion could not be made from clerical cadre, causing resentment. In the circumstances, Excise Commissioner, vide letter dated 29.8.1992, addressed to Secretary, Government of U.P., Excise Department, Lucknow, requested approval to consider to fill up the 30 back log vacancies pf Excise Inspector by promotion. He also referred to Government Order dated 11.12.1970, in which the State Government had decided to provide a quota of 10% to the Deputy Excise Inspectors by promotion to the post of Excise Inspectors and for that purposes provision was made in Rules of 1983. The Excise Commissioner pointed out to the State Government, that there are 172 vacancies on the post of Excise Inspectors and in view of the pending promotions 50% more post will fall vacant and thus, taking into account vacancies of 1993-94, 180 posts were sent for selections to Public Service Commission, which was likely to take some time. In view of urgency to fill the vacancies which was affecting the collection of excise dues in the State, the Excise Commissioner made recommendation that out of these 30 vacancies, 20 posts may be filled from clerical cadre and 10 from the cadre of Deputy Excise Inspector. The State Government vide letter dated 13.10.1992, under signatures of Sri Harish Chandra Srivastava, Special Secretary responded to the Excise Commissioner and informed him with the decision of the State Government to fill up the vacancies in the promotion quota in accordance with U.P. Subordinate Excise Service Rules, 1992. This five line order neither concurred with the recommendations, nor granted approval for filling up these vacancies from any source other than the sources provided under the Rules.
22. On the directions given by Court, the Standing Counsel has produced records of selection held in 1992 for promotions to the post of Excise Inspector. These records show that the office of Excise Commissioner treated the above referred letter of the State Government dated 13.10.1992, as approval to fill the vacancies reserved for Tari Supervisors from clerical cadre and Sub-Excise Inspectors and proceeded to make special selections. The criteria for selection was seniority subject to rejection of unfit. The Selection Committee filled up 14 posts by promotion from clerical cadre and 15 from Sub-Excise Inspectors. The order by which these 30 vacancies were equally divided between clerical cadre and Sub-Excise Inspectors has not been brought on record. The Committee, however, proceeded for selections equally dividing these vacancies between clerical cadre and the cadre of Sub-Excise Inspectors. The Selection Committee in its meeting dated 7.11.1992 and 17.11.1992, prepared a select list of eligible and suitable person for promotion from Clerks and Sub-Excise Inspectors.
23. In the Rules of 1967, permanent Tari Supervisors were provided to be one of the source of recruitment to Excise Inspector for which the quota had to be decided by the Excise Commissioner and which was not to exceed 10% of the vacancies to be filled in any one year. In the Rules of 1983, permanent Tari Supervisors were given 10% quota in promotion to the post of Sub-Excise Inspector alongwith direct recruits 77% and Excise Head Constable/Excise Constable 13%, which on their turn were given 10% in promotion to the post of Excise Inspectors. The clerical cadre was not given any quota for promotion. In the Rules of 1992, which came into force on 7.1.1992, Tari Supervisors were not given any quota in promotions. The quota of clerical cadre was restored to 10% of the posts of Excise Inspector. On 29.8.1992, when recommendation was made by Excise Commissioner for approval to fill up these 30 vacancies by promotion from clerical cadre and Sub-Excise Inspector, the Rules of 1992 had come into force. Instead of allocating these vacancies to the sources provided in the Rule 5 of the Rules, 1992, the Excise Commissioner treated these as back log vacancies, reserved for Tari Supervisors. No reason was given in the recommendation, except to treat these vacancies as separate and stating that there is possibility of delay in direct recruitment. The State Government vide its letter 13.10.1992, did not approve the recommendation. A clear and specific direction was given to Excise Commissioner to fill up the vacancies in accordance with quota provided under the Rules of 1992. Once, the Rules of 1992, came into force, there was no justification to delay and to attempt to fill up these vacancies as back log vacancies and not to include the same in the total number of vacancies to be filled up from the sources provided under the Rules of 1992. The State Government in its letter dated 13.10.1992 had not accepted the recommendations of Excise Commissioner.
24. Sri A.K. Gupta and Sri Ashok Khare have relied upon Rule 27 of the Rules of 1992. It is contended that Rule 27 provides for relaxation from the condition of service. I am not able to appreciate the contention. The relaxation under Section 27 is to be in respect of particular case, for which there should be satisfaction recorded by an order to be passed by the State Government. A relaxation is given in respect of any condition of service. These conditions include eligibility for appointment or promotion to any post, preferential qualification, age etc. The relaxation is to a person or a group of persons. Such relaxation cannot discriminate or violate rights of other persons regulated by some set of Rules. If the arguments of Sri A.K. Gupta and Sri Ashok Khare are to be accepted, the relaxation will affect the rights of other categories of employees. In the present case, the State Government neither expressed any opinion on the recommendation of the Excise Commissioner nor passed any order or gave any reasons to provide 30 vacancies reserved for Tari Supervisors to the Clerks and Sub-Excise Inspectors. The submission that the State Government had relaxed the condition of service by providing special source of recruitment to 30 vacancies of Excise Inspectors cannot be accepted.
25. Petitioners relied upon the Constitution Bench judgment of Supreme Court in Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra and Ors., (1990) 2 SCC 715, in this case, it was held that once, an incumbent is appointed to a post according to Rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Where the officiation appointment is made only ad hoc and not according to Rules and made as a stroke gap arrangement, the officiation in such post cannot be taken into consideration for seniority. If the officiation appointment is not made by following procedure laid down by the Rules, but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with Rules, the period of officiation service will be counted. It is permissible to fix the ratio for recruitment from public source and if Rules are framed they must ordinarily be followed strictly. Where the quota Rule has broken down and the appointments are made from one source, in excess of the quota, but are made after following the procedure prescribed by the Rules the appointees should not be pushed down below the appointees from other source, inducted in the service at a later date. Where the Rules permit authorities to relax the provisions relating to quota, ordinarily a presumption should be raised, that there was such relaxation, when there is a diversion from the quota Rule. In the present case, when petitioners were considered for promotion, the quota of Tari Supervisors was not available. Fortunately we have the records of the case, including the recommendation of the Excise Commissioner and the order of the State Government, which did not agree with the recommendations to relax the conditions. A presumption, therefore, cannot be raised. The petitioners were promoted clearly in excess of their quota. The vacancies reserved for Tari Supervisors in the Rules of 1967 and 1983, should have been divided in accordance with the quotas provided in Rule 5 of the Rules of 1992. The Excise Commissioner and the Selection Committee had no authority to proceed to fill up the posts reserved for Tari Supervisors from Clerks and Sub-Excise Inspectors. In the present case, we have the Seniority Rules of 1992, which will govern the fact situation and thus, the petitioners in these writ petitions cannot claim seniority until the date of availability of vacancies in their category. The Excise Commissioner shall determine the date of availability of vacancies for promotion to these Clerks and Sub-Excise Inspectors who were promoted against the vacancies of Tari Supervisors as and when the vacancies became available in their own categories, by re-determining the vacancies in accordance with Rule 5 of the Rules of 1992 and thereafter to fix their seniority in accordance with the Rule 8 of Seniority Rules of 1991.
26. Direct recruitment to the post of Excise Inspectors was advertised in the year 1987 for vacancies worked out upto the year 1987. A written examination was held after seven years and that these direct recruits were appointed in the year 1994. They have challenged the fixation of their seniority with effect from the date of their substantive appointment in the year 1994. It is submitted that they were appointed in pursuance of vacancies which arose and were calculated upto 1987 and thus, they should be placed in seniority list above, the promotees. They also submit that 14 persons, promoted from ministerial cadre on the vacancies reserved for Tari Supervisors, should be placed below them. In the year 1992 only 4 persons were promoted from ministerial cadre where as in the Rules of 1983, no such source of recruitment was provided from ministerial cadre and their ad hoc promotions on 7.8.1990 to the post of Sub-Excise Inspector does not entitle to them to claim promotion against the promotion quota. Only those vacancies occurring in the year 1991-92 were taken into account for promotion of members of ministerial cadre. Only three persons could be promoted prior to the year 1994. They were in excess of the quota and thus, according to First Proviso to Rule 8(3) they have to be pushed down in seniority to the subsequent years in which the vacancies arose in their quota. The total number of posts in the schedule to the Rules of 1992 was shown as 461 and thus, only 46 persons in 10% quota could be promoted, where as 68 persons were promoted from Sub-Excise Inspectors as on 30.6.1994. These 22 Excise Inspectors have also to be pushed down below the direct recruits of 1994, as they were also in excess of their quota. The direct recruits have also challenged the placement of 11 retrenched employees appointed in 1992 above them.
27. In Bimleshwar Talwar v. State of Haryana, (2003) 5 SCC 604, the Apex Court held that seniority depends upon the statutory Rules. Para 49 of the report is quoted as below :
"49. Seniority is not fundamental right. It is merely a civil right. Inter se - seniority of the candidates, who are appointed on the same day, would be dependent upon the Rules governing the same. Only in absence of any statutory Rules, the general principles may be held to be applicable."
28. In Ajit Kumar Rath v. State of Orissa and Ors., (1999) 9 SCC 596, the Supreme Court relying upon Jagdish Chandra Patnaik v. State of Orissa, (1998) 4 SCC 456, held that seniority of direct recruits cannot be determined with reference to the year of vacancies, instead of year of appointment. There has to be some time lag between the year, when the vacancies accrues and the year when final recruitment is made, for complying with the procedure prescribed or for any other reasons but that cannot be a ground for the Court to hold that he will get seniority from the year of recruitment. In the said case, the Supreme Court relied upon Rules of determining seniority. In the present case, Rule 8(1) of Seniority Rules of 1991, does not admit any doubt and provide for determining seniority of the promotees in case, where appointments are made both by the promotion and direct recruitment, to be determined, from the date of order of their substantive appointments.
29. The promotions of Clerks and Sub-Excise Inspectors were, however, made in the year 1992 and have not been challenged. Even in these writ petitions, no prayer has been made to set-aside the promotions. In the circumstances, I do not propose to disturb their appointments by promotion. However, they cannot claim seniority before the date of availability of vacancies in their categories. The determination of their seniority position in the impugned seniority list dated 20.6.2003 is set-aside. They shall entitled to determination of their seniority from the date of availability of vacancies in their quota in accordance with Rule 8 of the Seniority Rules of 1991.
30. The Rules of 1992, provides for fixation of seniority under the Rule 21 which makes the Seniority Rules of 1991, applicable to the service. Rule 8(1) of the Seniority Rules of 1991, provide for determination of seniority of a direct recruit from the date of order of their substantive appointment. The direct recruits have not challenged the validity of Rule 8(1) of the Seniority Rules of 1991. Even if the vacancies were of the period upto 1987 and the advertisement made in the year 1987, the direct recruits cannot claim seniority, prior to the date of their substantive app9intment.
31. The inter se seniority is to be determined in accordance with Sub-rule (2) and Sub-rule (3) of Rule 8. Sub-Rule 2(b) attracts the principles laid down in Rule 6 and Rule 7 where promotion is to be made from the single feeding cadre. Rule 8 provides for fixation of seniority of promotees and direct recruits on the result of anyone selection. In the present case, the direct recruits and promotees were not appointed as a result of any one selection. The First Proviso to Rule 8(3) provides that where appointments from any source are made in excess of prescribed quota, persons appointed in excess of quota shall be pushed down in seniority to subsequent year or years, in which there are vacancies in accordance with the quota.
32. There were 581 posts of Excise Inspectors out of which 120 posts were held in abeyance. These numbers are given in Appendix 'A' with reference to Rule 4(2) of the Rules of 1992. Thus, total number of 461 posts of Excise Inspector were available in 1992, out of which 10% i.e., 46 could be filled by promotion from Sub-Excise Inspectors, whereas 68 promotees were available as Sub-Excise Inspector as on 23.6.1994. This fact has not been denied in the counter-affidavit. These 22 Excise Inspections were working in excess of quota of Sub-Excise Inspectors. Under First Proviso to Rule 8(3) these promotees will have to be bushed down in the seniority list to the date when vacancies became available in their quota. It is submitted that 13 of these have been pushed down in final seniority list dated 20.6.2003. The Excise Commissioner shall re-determining their seniority, so as to push down, the remaining 9, as well, to the date when vacancies became available in their quota.
33. The submission of Sri Ashok Khare that the third Proviso to Rule 8(3) will be applicable to save the seniority position of those who were appointed in excess of their quota is not correct. The third Proviso to Rule 8(3) provides, that where in accordance with service Rules, the unfilled vacancies from any source could in the circumstances, mention in the relevant service Rules be filled from other sources and appointments in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they were appointed against the vacancies of their quota. In the present case, the Proviso of Rule 5 of Rules of 1992, provides that if sufficient number of suitable persons are not available for promotion, the field of eligibility shall be extended to substantively appointed Senior Clerks and Stenographers Grade-III who have completed ten years service on the first day of the year of recruitment and substantively appointed Junior Clerk who have completed 15 years of service, as such, on the first day of the year of recruitment. The proviso is not attracted, inasmuch as there is nothing on record to show that sufficient number of suitable and eligible candidates were not available for promotion either in 10% quota of from amongst the permanent Sub-Excise Inspectors and 10% of promotion from Senior Assistants and Stenographers of Grade-II of the Excise Department.
34. The thirteen retrenched employees, appointed by direct recruitment between 1.7.1992 to 30.6.1992, on substantive posts by special recruitment, have not been made party to the writ petitions. Opportunity was given to petitioners to implead all such person who may be affected by the writ petition. The petitioners have not availed the opportunity. It is contended that one of the retrenched employees is a party in these writ petitions. However, there is no proof of service of summons upon him. Their seniority, therefore, cannot be disturbed in their absence and thus, claims of direct recruits over and above seniority of such employees is not accepted. Their seniority shall be determined from the date of their substantive appointment as Excise Inspectors.
35. It is made clear here that Rule 8(3) for fixing seniority of the persons appointed in any one selection in cycling order is not applicable to the present case. Sub-Rule (3) to Rule 8 is attracted where appointments have been made both by promotion and direct recruitment on the result of any one selection. Expression 'any one selection' or 'selection', has not been defined in the Seniority Rules of 1991. Rule 4(1) defines 'year of recruitment' means a year of twelve months commencing from 1st day of July of a calendar year. There is difference between expression. 'Any one selection' and the 'year of recruitment'. The cyclic order, therefore, cannot be applied to the 13 retrenched employees and 10 promotions dated 5.8.1992, 10.8.1992, 15 and 17.11.1992, from amongst the clerical cadre. The seniority positions of these promotees including retrenched employees and promotees from clerical cadre will, therefore, be fixed in accordance with the date from the year of substantive appointment.
36. It is contended that the seniority position had assumed finality since 1994 and thus, it cannot be unsettled in the year 2003. Reliance has been placed upon Ashwani Kumar Singh v. U.P. Public Service Commission and Ors., JT 2003 (6) SC 184. In the said case, the question of seniority between Treasury Officer/ Accounts Officer in the State of U.P., in pursuance of combined State Service Examination of 1987 was in question. Additional posts were carried forward to the next year and were filled up on the basis of selection made by the commission. A policy decision restricted the appointments to candidates who had opted for Treasury Officer/Accounts Officer, if their names were included in the first 40 of the merit list. The Court repelled challenged to the logic for such fixation on the ground that it was neither totally irrational and tainted with mala fides. The employer in its wisdom can consider a particular range of selection to be appropriate. It was further found that accepting the prayer of the appellants would mean that the position which has assumed a sort of finality for more than a decade will be unsettled. The ratio of the decision is not applicable to the facts of the present case. In the present case, the seniority list was never finalised. It was subjected to revision after the judgment of this Court and Apex Court on 23.1.2003. A tentative seniority list was prepared inviting objections which were duly filled, decided and then the final list dated 20.6.2003, was prepared. It cannot, therefore, be said that the seniority position was settled between parties for any long period of time.
37. In the result Writ Petition Nos. 32066 of 2001, 32068 of 2001 are dismissed. The remaining writ petitions are partly allowed. The seniority list dated 20.6.2003 is set-aside. The Excise Commission, U.P., is directed to re-arrange the seniority, in accordance with directions given in the judgment. These directions can be summarized as follows :
(a) The Clerks and Sub-Excise Inspectors promoted as Excise Inspectors in the year 1992, on the vacancies in the quota of Tari Supervisors are held to be illegally placed in seniority list as their promotions were irregular. Their seniority shall be re-arranged to the date of availability of vacancies in their categories. The Excise Commissioner shall determine the date of availability of vacancies for promotion to the Clerks and Sub-Excise Inspectors, in their quotas and determine their seniority in accordance with Rule 8 of the U.P. Government Servants Seniority Rules, 1991.
(b) The promotions of four persons from Ministerial Cadre in the year 1992 in the vacancies which arose prior to the enforcement of Rules of 1992 are held to be without any available source of recruitment. These persons will also be pushed down in the seniority list until the availability of vacancies in their quota.
(c) The 22 Sub-Excise Inspectors promoted in excess of their quota in the Rules, shall also be pushed down in the seniority list to the dates on which the vacancies became available in their own quota.
(d) The 13 retrenched employees appointed by direct recruitment in the year 1992 will not be affected by this order. Their seniority shall be determined in accordance with the date of appointment on substantive posts.
38. The seniority list shall be re-arranged and a final seniority list shall be published as expeditiously as possible, after which it will be open to respondents to hold Departmental Promotion Committee for promotions to the vacancies on the posts of Assistant Excise Commissioners.
39. In the fact and circumstances, there shall be no order as to costs.