Uttarakhand High Court
Dr. Sunita Pandey vs State Of Uttarakhand And Others on 21 July, 2020
Equivalent citations: AIRONLINE 2020 UTR 253
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 297 of 2017
Dr. Sunita Pandey ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
With
Writ Petition (S/B) No. 326 of 2017
Ajay Kumar & others ...Petitioners
Vs.
State of Uttarakhand and others ...Respondents
Writ Petition (S/B) No. 676 of 2018
State of Uttarakhand & others ...Petitioners
Vs.
Navindra Singh Bora & others ...Respondents
Mr. Shashank Pandey and Mr. Hari Mohan Bhatia, Advocates for the petitioners in Writ
Petition (S/B) Nos.297 of 2017 and 326 of 2017.
Mr. J.P. Joshi, Additional Advocate General assisted by Mr. B.P.S. Mer, Brief Holder for
the State.
Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. A.K. Verma, Advocate for the
respondent-claim petitioner.
Reserved On: 23.06.2020
Delivered On: 21.07.2020
Chronological list of cases referred :
1. (1975) 1 SCC 152
2. (2007) 1 SCC 683
3. (2014) 14 SCC 720
4. (2011) 3 SCC 267
5. (1990) 4 SCC 636
6. AIR 1967 SC 52
7. AIR 1968 SC 1385
8. (2019) 16 SCC 28
9. (1974) 3 SCC 220
10. AIR 1991 SC 1244
11. (1979) 2 SLR 478
12. (2005) 1 UPLBEC 306;
13. Order in Writ Petition (S/B) No. 211 of 2009 dated 07.10.2020
14. (2006) 10 SCC 346)
15. (1969) 1 SCC 825
16. AIR 1977 SC 2051
17. (1990) 2 SCC 715
18. (1996) 8 SCC 637
19. (2015) 10 SCC 241
20. AIR 1984 SC 1022
21. (2005) 9 SCC 129
22. AIR 1964 SC 207
23. (2005) 1 SCALE 42
24. AIR 1953 SC 75
25. AIR 1957 SC 657
2
26. Order in Writ Petition (S/B) No.22 of 2010 dated 07.10.2010
27. (1986) 4 SCC 447
28. AIR 1976 SC 1031
29. (2007) 5 SCC 447
30. AIR 1962 SC 256
31. (1891) AC 107
32. (2002) 1 SCC 633
33. (2008) 16 SCC 607
34. (2013) 11 SCC 451
35. (2014) 3 SCC 92
36. (1965) AC 735
37. AIR 1963 SC 946
38. (1977) 4 SCC 193
39. AIR 1964 SC 1742
40. (1899) 2 QB 158
41. (2003) 2 SCC 455
42. (2004) 7 SCC 591
43. (2007) 2 SCC 230
44. AIR 2003 SC 2434
45. (1973) 1 SCC 216
46. AIR 1957 SC 90
47. (1976) 1 SCC 77
48. AIR 2001 SC 1980
49. (2013) 3 SCC 117
50. (2002) 4 SCC 539
51. AIR 1957 SC 832
52. (2004) 9 SCC 686
53. (2004) 11 SCC 625
54. (1983) 2 SCC 235
55. AIR 2004 SC 4219
56. AIR 1977 SC 2328
57. AIR 1973 SC 2309
58. (1876-77) 2 AC 743
59. (1955) 2 All ER 345
60. (2010) 12 SCC 471
61. AIR 1986 SC 2086
62. AIR 1975 SC 1269
63. AIR 1999 SC 1510
64. (1983) 2 SCC 1
65. (1998) 8 SCC 685
66. (2003) 1 SCC 335
67. AIR 1999 SC 152
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J.
These Writ Petition are listed before us pursuant to the order of the Supreme Court dated 27.01.2020, in Civil Appeal No.728, 729 and 730 of 2020 preferred by the State of Uttarakhand. While Civil Appeal No.728 of 2020 was preferred against the order passed by a Division Bench of this Court in Writ Petition (S/B) No.676 of 2018 dated 17.05.2019, Civil Appeal No.729 of 2020 was preferred against the order passed in Writ Petition (S/B) No. 297 of 2017 dated 24.09.2018, and Civil Appeal No.730 of 2020 was preferred 3 against the order passed in Writ Petition (S/B) No. 326 of 2017 dated 24.09.2018.
2. In its order dated 27.01.2020, the Supreme Court observed that the crucial aspect raised by the State of Uttarakhand was whether the scenario in question was covered by Rule 6 or Rule 8 of the Uttaranchal Government Servants Seniority Rules, 2002; this question was not examined in either of the petitions; and, while it was the case of the State Government that the recruitment in question was covered by Rule 8 and not by Rule 6, the private respondent sought to contend to the contrary. While making it clear that they were not commenting on the merits or de-merits of the contention, the Supreme Court opined that it wished to have the benefit of the order of the High Court on this question which had not been examined in either of the appeals. In view thereof, with the consent of the learned counsel for the parties, the orders under appeal were set-aside, and the matter was remanded to this High Court for examination on the merits of the aforesaid aspect which was held crucial to the result of the appeals.
3. Learned counsel, appearing for all the parties on either side, are in agreement that it would suffice to refer to the parties to these proceedings as they are arrayed in Writ Petition (S/B) No.297 of 2017. It is useful to note the relevant facts preceding the order of the Supreme Court whereby all the three Writ Petitions were remanded to this Court.
4. The selection process, for appointment to the posts of Sales Tax Officer Grade-II, was undertaken in the year 1990. It is the case of the fifth respondent (claim petitioner before the Tribunal) that, though he stood above respondent nos.6 to 11 in the merit list prepared by the Uttar Pradesh Public Service Commission, respondent nos.6 to 11 were offered appointment as Sales Tax Officers Grade-II in the months of March/April, 1994, and he was offered appointment to the said post more than two years thereafter on 09.05.1996; he was issued a letter of appointment on 20.07.1996, and joined the post of Sales Tax Officer Grade-II on 01.08.1996; in the seniority list of Sales Tax Officers Grade-II, published on 26.12.2001, he was shown above respondent nos.6 to 11; since respondent nos.6, 7, 9, 10 and 11 were appointed as Sales Tax Officers Grade-II in March-April, 1994, they were 4 promoted, on completion of seven years of service, to the post of Assistant Commissioner on 20.01.2003; respondent no.8 was, however, not considered for promotion, though he was also appointed as Sales Tax Officer Grade-II in March-April, 1994, since adverse entries were made against him in his service record; after these adverse entries were expunged on 18.07.2003, respondent no.8 was also promoted as Assistant Commissioner on 21.06.2004; though the fifth respondent had completed seven years of service, as Sales Tax Officer Grade-II on 01.08.2003, he was not promoted, along with respondent no.8, on 21.06.2004; and, aggrieved thereby, he submitted a representation to the State Government on 15.07.2004 complaining of his not being promoted to the post of Assistant Commissioner.
5. The petitioner, and respondent nos.12 to 26, were all appointed by direct recruitment as Assistant Commissioners on 06.07.2005. The fifth respondent-claim petitioner was, however, promoted as an Assistant Commissioner, nearly two years thereafter, on 28.06.2007. A tentative seniority list of Assistant Commissioners was published on 18.05.2009 wherein the name of the fifth respondent was shown at two places ie both at Sl. Nos.32 and 55. The fifth respondent-claim petitioner submitted a representation, thereafter, contending that his name had been erroneously shown at Sl. No.55 in the tentative seniority list, and he was entitled to be placed at Sl. No.32 in the final seniority list to be issued.
6. It is the case of the fifth respondent that, on his objections being considered, his name was rightly shown at Sl. No.32 in the final seniority list published on 14.11.2009; thereafter, on 26.04.2011, the petitioner, the fifth respondent and respondent nos.12 to 26 were all promoted as Deputy Commissioners on the basis of the said final seniority list issued on 14.11.2009; all of them received financial benefits, ie they received the benefit of the enhanced pay-scales of Rs.15000-39100 applicable to the post of Deputy Commissioner, as against the earlier pay-scales applicable to the post of Assistant Commissioner of Rs.8000-13500; it is only thereafter that objections were filed, to the final seniority list dated 14.11.2009 by Mr. B.K. Palti in October, 2010, and later by the petitioner, respondent nos.13 and 15 in May, 2011; on receipt of these objections, the State Government issued notice to the fifth respondent-claim petitioner on 07.03.2013 to show-cause why the 5 seniority list dated 14.11.2009 should not be revised; he submitted his reply thereto on 21.03.2013; a fresh seniority list of Assistant Commissioners was published on 19.02.2015 wherein the fifth respondent-claim petitioner was shown at Sl. No.54(a), as against Sl. No.32 in the earlier seniority list dated 14.11.2009; and, aggrieved thereby, he had invoked the jurisdiction of the Uttarakhand Public Services Tribunal.
7. In its order, in Claim Petition No.19/NB/DB/2015 dated 26.04.2017, the Uttarakhand Public Services Tribunal (for short 'the Tribunal'), after taking note of Rules 6 and 8 of the Uttaranchal Government Servants Seniority Rules, 2002 (for short the "2002 Rules"), and Rule 22 of the Uttar Pradesh Sales Tax Service Rules, 1983 (for short the "1983 Rules") observed that the seniority of promotees, as well as direct recruits, were finalized after issuing the tentative seniority list on 18.05.2009; objections were invited, and were considered, by the Principal Secretary (Finance) in his order dated 14.11.2009; there was no occasion to re-disturb or revise the final seniority list dated 14.11.2009, as none of the parties had approached the Court, or any other authority, challenging the order of the Principal Secretary (Finance) dated 14.11.2009; the respondents could not have disturbed the final settled seniority on their own, after a lapse of 4-5 years, on the basis of the representations submitted by the direct recruits; and hence the impugned order suffered from this defect, and could not be allowed to stand.
8. The Tribunal, thereafter, opined that the fifth respondent could not be placed below his juniors ie respondent nos.6 to 11; even though representations were made by direct recruits, the settled seniority could not be re-opened; it was contended, on behalf of the fifth respondent-claim petitioner, that the direct recruits had joined service in the year 2005 whereas his juniors were promoted in the year 2003, and he was eligible for promotion in August, 2003; according to the Rules, when a cadre is to be filled up from promotees as well as direct recruits, the respondents were bound to make it simultaneously, according to Rule 8 of the 2002 Rules; according to Rule 18 of the 1983 Rules, it was essential for a combined select list to be prepared by taking the names of candidates from the relevant lists; when direct recruitment was made in 2005, it was obligatory for the State Government to prepare a combined list; if that exercise had been undertaken, as per Rules, in 6 2005, the fifth respondent was eligible for promotion; he was the senior most in the list; seniority should have been determined according to Rule 8(3) of the 2002 Rules; and promotee officers would then have secured the first place above the direct recruits.
9. The Tribunal further opined that the State Government had not followed the relevant rules for recruitment in 2005; the fifth respondent, who was eligible under the promotion quota before the year 2005, was left out disobeying the rules; he was hence eligible to be notionally promoted as per Rule 22 of the 1983 Rules w.e.f August, 2003; in the light of the representation moved by the direct recruits, the fifth respondent's seniority, settled earlier in 2009, could not have been disturbed under any circumstances; and the fifth respondent was entitled for the relief sought for by him. The Claim Petition was allowed, the impugned order and the seniority list dated 19.02.2015 issued by the Principal Secretary (Finance), Government of Uttarakhand, were set-aside, and the State Government was directed to re- determine the seniority of Assistant Commissioners according to Rule 6 of the 2002 Rules, and in the light of the observations made in the body of the judgment.
10. Aggrieved thereby, 11 direct recruit Assistant Commissioners invoked the jurisdiction of this Court by filing Writ Petition (S/B) Nos.279 and 326 of 2017. Both these Writ Petitions were heard together, and were dismissed as without merit by a Division Bench of this Court. In its order dated 24.09.2018 the Division Bench, relying on the judgment of the Supreme Court in P.S. Sadasivaswamy vs. State of Tamil Nadu1, held that a challenge to the seniority list dated 14.11.2009 was made only on 02.05.2011; the petitioners had not challenged the promotion order dated 26.04.2011 (as Deputy Commissioners) based on the seniority list dated 14.11.2009; settled seniority should not be unsettled after a considerable period has elapsed; the seniority list dated 14.11.2009 was proposed to be altered after nearly 3½ years; in the meanwhile, the status of a number of employees had changed, and they were promoted to the post of Deputy Commissioner; and once a seniority list had been issued and published, and it was brought to the notice of the incumbents, representations ought not to have been entertained by the respondents, that too after a long period of two years, and after permitting 7 promotions to be made. The Division Bench upheld the order of the Tribunal dated 26.04.2017 also for the reasons assigned in its order, and dismissed both the Writ Petitions.
11. Writ Petition (S/B) No.676 of 2018, filed by the State of Uttarakhand against the very same order of the Tribunal, was listed before another Division Bench of this Court which, in its order dated 17.05.2019, opined that the Government of Uttarakhand could not be permitted to question the validity of the order passed by the Public Services Tribunal dated 26.04.2017, which had been upheld by a Division Bench of this Court in Writ Petition (S/B) Nos.297 and 326 of 2017 dated 24.09.2018, by way of the present Writ Petition. Writ Petition (S/B) No. 676 of 2018 was also dismissed.
12. Against the order passed by the Division Bench, in Writ Petition (S/B) Nos.297 and 326 of 2017 dated 24.09.2018, the Petitioners therein carried the matter in appeal to the Supreme Court in Special Leave Petition Diary No.47529 of 2018 which was dismissed as withdrawn by order dated 11.07.2019. It does appear that only, thereafter, was the jurisdiction of the Supreme Court invoked by the State of Uttarakhand, against the order passed in all the three Writ Petitions, resulting in the order dated 27.01.2020 being passed by the Supreme Court whereby the order of the Division Bench, in all the three writ petitions, were set-aside, and the matter was remanded to this Court for its consideration afresh in the light of the observations made by it in the order of remand.
13. Elaborate submissions have been put forth by Mr. J.P. Joshi, learned Additional Advocate General appearing on behalf of the State Government (petitioner in Writ Petition (S/B) No. 676 of 2018), and Mr. Shashank Pandey, learned counsel for the petitioner in Writ Petition (S/B) No. 297 of 2017. Mr. Hari Mohan Bhatia, learned counsel for the petitioner in Writ Petition (S/B) No. 326 of 2017 largely adopts their submissions.
14. Mr. J.P. Joshi, learned Additional Advocate General, would rely on State of Uttaranchal v. Dinesh Kumar Sharma2; State of U.P. v. Ashok Kumar Srivastava3; Pawan Pratap Singh v. Reevan Singh4; State of A.P. v. K. Ranganathan5; Mervyn Continho v. Collector of Customs6; S.K. 8 Ghosh v. Union of India7; Ganga Vishan Gujrati and others v. State of Rajasthan and others8; State of Haryana v. Subash Chander Marwaha9; and State of Bihar v. Akhouri Sachindra Nath10.
15. Mr. Shashank Pandey, learned counsel for the petitioner, would rely on the Full bench judgment of the Delhi High Court in K.R. Raghavan v. Union of India and ors11; Ajay Kumar Sinha v. High Court of Judicature at Allahabad and ors12; and the order of the Division Bench of this Court in Gopal Singh Mehra & another v. State of Uttarakhand & others13. Mr. Hari Mohan Bhatia, learned counsel, would place reliance on Dinesh Kumar Sharma2; and Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.14.
16. Mr. C.D. Bahuguna, learned Senior Counsel, put forth detailed submissions, on behalf of the fifth respondent-claim petitioner with his usual eloquence. In support thereof, he relied on Sub-Divisional Officer v. Shambhoo Narain Singh15; P.S. Sadasivaswamy1; S.B. Patwardhan & Others v. State of Maharashtra & Others16; and Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra17. Learned Senior Counsel would also submit that none of the judgments, cited on behalf of the petitioners in all the three Writ Petitions, deal with the present situation, and are inapplicable to the facts and circumstances of the case on hand.
17. It is convenient to examine the rival submissions, urged on behalf of learned Additional Advocate General, the learned Senior Counsel and the learned counsel on either side, under different heads.
I. IS IT RULE 6 OR RULE 8 OF THE 2002 RULES WHICH IS APPLICABLE IN DETERMINING THE INTER-SE SENIORITY OF DIRECT RECRUITS AND PROMOTEES?
18. As the Supreme Court had, in the order of remand dated 27.01.2020, opined that the High Court had, in the order under appeal before it, failed to examine whether the recruitment in question was covered by Rule 6 or Rule 8 of the 2002 Rules, and that it should examine the rival contentions in this regard, it is necessary for us to examine this issue first, before we consider the other contentions put forth by learned counsel on either side.
9(i) CONTENTIONS URGED ON BEHALF OF THE PETITIONERS:
19. Mr. J.P. Joshi, learned Addl. Advocate General, would submit that the 1983 Rules, on which reliance is placed on behalf of the fifth respondent-claim petitioner, has no application after the 2002 Rules came into force; Rule 6 of the 2002 Rules is attracted only when appointment is made solely by promotion; the said Rule has no application in cases where appointments are made to posts both by promotion and by direct recruitment;
in such cases, it is only Rule 8 which is applicable; Rule 8(1) requires seniority to be determined from the date of substantive appointment; seniority, in terms of Rule 8(1), has nothing to do with seniority in the feeder cadre; in the present case, the petitioner and respondents 12 to 26 were all substantively appointed, by direct recruitment, as Assistant Commissioners on 06.07.2005; the fifth respondent-claim petitioner was promoted as an Assistant Commissioner only thereafter on 28.06.2007; the petitioner and respondent nos.12 to 26 were substantively appointed by direct recruitment to the post of Assistant Commissioner on 06.07.2005, nearly two years before the fifth respondent-claim petitioner was substantively appointed by promotion as an Assistant Commissioner on 28.06.2007; the seniority list dated 19.02.2015, impugned before the Tribunal, rightly determined the inter- se seniority in terms of Rule 8(1) of the 2002 Rules; the direct recruits were rightly placed above the promotee fifth respondent-claim petitioner; and the catch-up rule, in Rule 6 of the 2002 Rules or in Rule 22(3) of the 1983 Rules, has no application.
20. Mr. Shashank Pandey, learned counsel for the petitioner, would submit that reliance placed, on behalf of the fifth respondent-claim petitioner on Rule 22(3) of the 1983 Rules is misplaced; Rule 3 of the 2002 Rules expressly stipulates that the 2002 Rules would apply notwithstanding anything contrary contained in any other service rules; consequently, it is only the 2002 Rules which would apply, and not the 1983 Rules; Rules 5 to 8 of the 2002 Rules govern the manner in which seniority should be determined; since inter-se seniority, in the present case, is to be determined between direct recruits and promotees, Rule 8(1) is alone attracted; since the petitioner and respondents 12 to 26 were substantively appointed as Assistant Commissioners by direct recruitment on 06.07.2005, long before the fifth 10 respondent-claim petitioner was promoted to the said post on 28.06.2007, it is they, and not the fifth respondent, who were rightly shown higher in the seniority list in terms of Rule 8(1); the words "any one selection" in Rule 8(2) has not been defined either in the 2002 Rules or in the 1983 Rules; these words can only mean a recruitment year, since selection, both for direct recruitment and promotion, is seldom held simultaneously; Rules 8(2) and (3) have no application to the present case, since they relate to the result of "any one selection"; since the petitioner was appointed by direct recruitment as an Assistant Commissioner in the recruitment year 2005-06, and the fifth respondent-claim petitioner was promoted to the said post in the recruitment year 2006-07, it is evident that such appointments were not made pursuant to "any one selection" and, consequently, it is only Rule 8(1) which is attracted, and not Rules 8(2) and (3); and, in the light of the order passed by the Supreme Court on 27.01.2020, this Court is required to confine its examination as to whether it is Rule 6 or Rule 8 of the 2002 Rules which is applicable to the present case.
(ii) CONTENTIONS URGED ON BEHALF OF THE FIFTH RESPONDENT-CLAIM PETITIONER:
21. On the other hand Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the fifth respondent-claim petitioner, would submit that the Tribunal had taken note of both Rules 6 and 8 of the 2002 Rules, and had recorded its findings on its applicability; in the seniority list of Sales Tax Officers (Grade II), issued on 26.12.2001, the catch-up Rule in Rule 22(3) of the 1983 Rules was applied, and the fifth respondent-claim petitioner was shown above respondents 6 to 11 therein; none of respondents 6 to 11 have ever questioned this seniority list issued on 26.12.2001; even after the final seniority list was issued on 17.11.2009, wherein the fifth respondent-writ petitioner was placed above respondents 6 to 11 in the seniority list, none of respondents 6 to 11 have ever questioned its validity; it is Rule 6 of the 2002 Rules which is applicable as between the fifth respondent and respondents 6 to 11 as they are all promotees; on application of the catch-up rule in Rule 6, the fifth respondent was rightly held senior to respondents 6 to 11 who were all appointed as Assistant Commissioners on 01.08.2003; in determining the inter-se seniority between the promotee fifth respondent-claim petitioner on the one hand, and the direct recruit petitioner and respondents 12 to 26 on the 11 other, it is Rule 8 which would apply; Rule 8(1) expressly provides that it is subject to Rules 8(2) and (3); Rule 8(2)(a) is guided by Rule 15, and Rule 8(2)(b) by Rule 16 of the 1983 Rules; the contention that the definition in Rule 3(O) of the 1983 Rules, of a "recruitment year", should be treated as equivalent to the words "any one selection" in Rules 8(2) and (3) of the 2002 Rules is not tenable; a literal construction should be applied, and the words "any one selection" can only mean what is referred to in Rules 15(4) and 16 of the 1983 Rules; a selection list is to be prepared in terms of Rule 16 of the 1983 Rules; as Rule 8(1) is subject to Rules 8(2) and (3), the contention that it is only the date of substantive appointment, which should govern inter-se seniority, is not tenable; the procedure to be adopted is that inter-se seniority among direct recruits must be determined in terms of Rule 8(2)(a), and the inter-se seniority of promotees should be determined in terms of Rule 8(2)(b); since Rule 8(2)(b) itself requires the principles laid down in Rule 6 to be applied, seniority of the petitioner vis-à-vis respondents 6 to 11 would be governed by Rule 8(2)(b) read with Rule 6 of the 2002 Rules; after such an exercise is completed, the next stage is for the preparation of an integrated seniority list between direct recruits and promotees; Rule 8(3) is attracted at that stage and, while determining inter-se seniority between direct recruits on the one hand and promotees on the other, the cyclic order stipulated in Rule 8(3) would govern, the first being that of a promotee; consequently it is the fifth respondent-claim petitioner who, as the sole promotee, is required to be placed first in such a seniority list; the petitioners and respondents 12 to 26 were en bloc placed above the fifth respondent-claim petitioner in the seniority list, in violation of Rule 8(3), which is illegal, arbitrary and contrary to the law declared by the Supreme Court in S.B. Patwardhan16 which was later affirmed by the Constitution Bench of the Supreme Court in Direct Recruit Class II Engg. Officers' Assn.17; and since the seniority of respondents 6 to 11 over the petitioner has not been put in issue by the direct recruits ie respondents 12 to 26 and, as respondents 6 to 11 have not put in issue the fifth respondent-claim petitioner being placed above them in the final seniority list of Assistant Commissioners dated 14.11.2009, the petitioners cannot now be heard to contend otherwise, and claim that they should be placed above the fifth respondent in the seniority list of Assistant Commissioners; Rule 22(3) of the 1983 Rules is a catch-up Rule, which 12 continues to govern the manner in which inter-se seniority of persons, appointed by promotion, should be determined; the contention that it would cease to have effect, on the 2002 Rules being made, is not tenable; Rule 3 of the 2002 Rules stipulates that the 2002 Rules shall have effect notwithstanding anything contrary contained in any other service rules; and Rule 22(3) of the 1983 Rules is not contrary to the 2002 Rules. Learned Senior Counsel would rely on Pilla Sitaram Patrudu v. Union of India18 in this regard.
(iii) PROVISIONS RELATING TO DETERMINATION OF
SENIORITY IN THE 1983 RULES:
22. The dispute, in these three writ petitions, relates to the inter-se seniority between the petitioner and respondents 12 to 26 on the one hand, and the fifth respondent-claim petitioner on the other, as reflected in the seniority list of Assistant Commissioners dated 19.10.2015. The post of Assistant Commissioners falls under the Uttarakhand Sales Tax Officers Service Rules, 1983 (for short the "1983 Rules") made under the proviso to Article 309 of the Constitution of India. The 1983 Rules stipulates that the Uttarakhand Sales Tax Service is a State service comprising of Group-A and Group-B posts. Part-II of the 1983 relates to "cadre", and Rule 4(1) thereunder stipulates that the strength of the service in each category shall be such as may be determined by the Government from time to time. Rule 4(2) of the 1983 Rules classifies the posts, strength of service and all categories of Group-B and Group-A posts. It is not in dispute that the post of Sales Tax Officer Grade-I, as referred to in Rule 4(2), was later re-designated as "Assistant Commissioner". Part-III of the 1983 Rules relates to "recruitment", and Rule 5(1) thereof prescribes that recruitment, to various categories of posts in the service, shall be made from the sources indicated against each. The sources of recruitment for the post of Sales Tax Officer Grade-I (later re-designated as Assistant Commissioner) were (i) 50 percent of the vacancies by direct recruitment on the result of a competitive examination conducted by the Uttarakhand Public Service Commission, and
(ii) 50 per cent of the vacancies by promotion, through the Uttarakhand Public Service Commission, from amongst the substantively appointed Sales Tax Officers Grade II who had completed seven years of service as such on the first day of the year of recruitment. It is the Uttarakhand Public Service 13 Commission (for short the "Commission") which has been conferred power, under the 1983 Rules, to undertake the exercise of recruitment and selection, to fill-up vacancies in the posts of Assistant Commissioner, both by direct recruitment and by promotion in the ratio of 50 percent each.
23. Part-V of the 1983 Rules prescribes the 'procedure for recruitment' and, under Rule 14 thereof, the appointing authority shall determine and intimate to the Commission, the number of vacancies on the post of Sales Tax Officer (Assistant Commissioner) to be filled during the course of the year. Rule 15 prescribes the procedure for direct recruitment on the post of Sales Tax Officer and, in terms of Sub-Rule (1) thereof, applications, for permission to appear in the competitive examination, shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment, if any. Rules 15(2) and (3) of the 1983 Rules prescribe the manner in which such an examination is required to be held. Under Rule 15(4) of the 1983 Rules, the Commission is required to prepare a list of candidates, in the order of their proficiency, and forward such a list to the appointing authority.
24. Rule 16 of the 1983 Rules prescribes the 'procedure for recruitment by promotion to the posts of Sales Tax Officer' (now Assistant Commissioner) and, thereunder, selection to the posts of Sales Tax Officer (later called "Assistant Commissioner") by promotion shall be made on the basis of seniority, subject to rejection of unfit, in accordance with the Uttar Pradesh Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970, as amended from time to time. Rule 18 of the 1983 Rules relates to the 'combined select list', and stipulates that if, in the year of recruitment, appointments are made, both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates from the relevant list in such a manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion.
25. Rule 19(2) of the 1983 Rules stipulates that where, in a year of recruitment, appointments are made both by direct recruitment and by promotion, regular appointment shall not be made unless selections are made 14 from both the sources, and a combined select list is prepared in accordance with Rule 18. Section 3(o) of the 1983 Rules defines 'year of recruitment' to mean a period of 12 months commencing from the first day of July of the calendar year. Rule 18 of the 1983 Rules, as noted hereinabove, requires a combined select list to be prepared if, in a year of recruitment, appointments are made both by direct recruitment and by promotion. The said combined select list is required to be prepared taking the names of candidates, from the relevant list, ensuring that the prescribed percentage is maintained, and the first name in the list is that of a promotee.
26. The dispute, in the present case, does not relate to appointments made, both by direct recruitment and by promotion, in any "year of recruitment". Consequently, the requirement of preparing a combined select list, in terms of Rule 18 of the 1983 Rules, has no application to the case on hand. Rule 19(3) of the 1983 Rules is attracted only if one order of appointment is issued in respect of "any one selection". This Rule has also no application, since the dispute, in the present case, does not relate to determination of seniority pursuant to recruitment made, both by direct recruitment and by promotion, in "any one selection".
27. Rule 22(1) of the 1983 Rules stipulates that, except as hereinafter provided, the seniority of a person in any category of posts shall be determined from the date of the order of substantive appointment and, if two or more persons are appointed together, by the order in which their names are arranged in the appointment order. Under the proviso thereto, 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 the order of substantive appointment and, in other cases, it will mean the date of issue of the order. Under the proviso, if more than one order of appointment is issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of Rule 19.
28. Rule 22(2) of the 1983 Rules stipulates that the seniority inter-se of persons, appointed directly on the result of any one selection, shall be the same as determined by the Commission. Under the proviso thereto, a 15 candidate recruited directly may lose his seniority if he fails to join without valid reasons when the vacancy is offered to him; and the decision of the appointing authority, as to the validity of reasons, shall be final. Rule 22(3) stipulates that the seniority, inter-se of persons appointed by promotion, shall be the same as it was in the cadre from which they were promoted. If Rule 22(3) of the 1983 Rules were applicable, the 5th respondent-claim petitioner would have, on his promotion as an Assistant Commissioner on 28.06.2007, been required to be placed above respondent nos. 6 to 11 (who were all promoted on 20.01.2003 and 21.06.2004), in the seniority list of Assistant Commissioners for, in the final seniority list of Sales Tax Officers Grade-II dated 26.12.2001 (the cadre from which promotion is made to the post of Assistant Commissioner), the 5th respondent herein was shown above them.
29. As learned counsel on either side are not ad idem on whether it is the 1983 Rules or the 2002 Rules which would govern determination of inter- se seniority, between Assistant Commissioners appointed by direct recruitment and Assistant Commissioners appointed by promotion, it is useful to take note of what the Uttaranchal Government Servants Seniority Rules, 2002 (for short the "2002 Rules") stipulate.
30. The 2002 Rules were also made by the State Government in the exercise of powers conferred by the proviso to Article 309 of the Constitution of India. These Rules came into force on its notification in the gazette on 14.08.2002. As the petitioners and respondents 12 to 26 were all appointed by direct recruitment as Assistant Commissioners on 06.07.2005, and the 5th respondent was promoted as an Assistant Commissioner on 28.06.2007, both of which are posterior to the 2002 Rules having come into force, it is necessary to refer, to the extent relevant, what the 2002 Rules provide in this regard. Rule 2 gives the 2002 Rules over-riding effect, and stipulates that these Rules shall apply to all Government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Government under the proviso to Article 309 of the Constitution. Rule 3 stipulates that these Rules shall have effect notwithstanding anything to the contrary contained in any other service rules made here to above. Both Rule 3(n) of the 1983 Rules and Rule 4(h) of the 2002 Rules define "substantive appointment" to mean appointment, not being an ad hoc appointment, on a 16 post in the cadre of the service, made after selection in accordance with the rules, which would mean the Service Rules relating to that service.
31. Part-II of the 2002 Rules relates to 'Determination of Seniority'. Rule 5, which relates to seniority where appointment is made by direct recruitment only, provides that where, according to the service rules, appointments are to be made only by direct recruitment, the seniority inter-se of 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. Rule 6 of the 2002 Rules relates to 'seniority where appointment is made by promotion only from a single feeding cadre' and thereunder, 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. Under the Explanation thereto, 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 seniority as it was in the feeding cadre. Rule 7 of the 2002 Rules, which relates to 'seniority where appointments are made by promotion only from several feeding cadres, has no application since, in the present case, promotion to the post of Assistant Commissioner is from the single feeding cadre of Sales Tax Officer- Grade-II.
32. Rule 8 of the 2002 Rules relates to 'seniority where appointments are made by promotion only and from direct recruitment and, under sub-rule (1) thereof, 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 appointment and, if two or more persons are appointed together, in the order in which their names are arranged in the appointment order. Under the first proviso thereto, if the appointment order specified a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of the order of substantive appointment and, in other cases, it will mean the date of the order. Under the second proviso, a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when the 17 vacancy is offered to him, and the decision of the appointing authority, as to the validity of reasons, shall be final. Rule 22(1) of the 1983 Rules is similar to Rule 8(1) of the 2002 Rules.
33. Rule 8(2) stipulates that 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 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. Rule 8(3) stipulates that, where appointments are made both by promotion and direct recruitment, on the result of any one selection, the seniority of promotion vis-a-vis direct recruits shall be determined in a cyclic order, the first being a promotee as far as may be, in accordance with the quota prescribed for the two sources. Illustration (1), thereunder, provides that, where the quota of promotees and direct recruits is in the proportion of 1:1, the seniority shall be in the following order; ie First-Promotion, and Second- Direct recruits and so on.
34. The petitioners in Writ Petition (S/B) Nos. 297 & 326 of 2017 have not questioned respondent nos. 6 to 11 having been placed, in the seniority list of Assistant Commissioners, above them evidently because respondent nos. 6, 7, 9, 10 and 11 were promoted as Assistant Commissioners on 20.1.2003, and respondent no. 8 was promoted as an Assistant Commissioner on 21.06.2004 prior to when the petitioner and respondent nos. 12 to 26 were appointed, by direct recruitment, as Assistant Commissioners on 06.07.2005. If Rule 22(3) of the 1983 Rules were to apply, the fifth respondent-claim petitioner, notwithstanding his promotion as Assistant Commissioner only on 28.06.2007, would have been required to be placed above respondents 6 to 11 in the seniority list of Assistant Commissioners, and consequently above the petitioner and respondents 12 to 26 also, in as much as they are, admittedly, required to be placed below respondents 6 to 11 in the seniority list of Assistant Commissioners.
18(iv) NON-OBSTANTE CLAUSE IN RULE 3 OF THE 2002 RULES:
ITS EFFECT:
35. The contention, urged on behalf of the petitioners, however, is that Rule 22(3) of the 1983 Rules has no application after the 2002 Rules were made, since Rule 3 thereof stipulates that the 2002 Rules shall have effect notwithstanding anything to the contrary contained in any other service rules made here to above. A "non obstante clause" is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found in the same enactment, or any other enactment, to avoid the operation and effect of all contrary provisions.
(Laxmi Devi v. State of Bihar19; Union of India v. G.M. Kokil20). It is equivalent to saying that, inspite of the laws mentioned in the non-obstante clause, the provision following it will have full operation, or the laws embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. (State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh21; South India Corpn. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum22).
36. Normally the use of a non-obstante clause by the legislature, in a statutory provision or rule, is equivalent to saying that no other provision of the Act or the Rule (or any other Rules) shall be an impediment to the measure. Use of such an expression is another way of saying that the provision, in which the non-obstante clause occurs, would wholly prevail over the other provisions of the Act or Rule, or any other Act or Rule. Non- obstante clauses are to be regarded as clauses which remove all obstructions which might arise out of any of the other provisions of the Act or Rule, or any other Act or Rule, in the way of the operation of the principal enacting provision to which the non-obstante clause is attached. (Bihar Rajya M.S.E.S.K.K. Mahasangh21; Iridium India Telecom Ltd. v. Motorola Inc23). While interpreting a provision containing a non-obstante clause, it should first be ascertained what the enacting part of the Section / Rule provides, on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in any other law which is inconsistent with the Section / Rule containing the non-obstante 19 clause. (Aswini Kumar v. Arabinda Bose24; A.V.Fernandez v. State of Kerala25).
37. In view of the non-obstante clause in Rule 3 of the 2002 Rules, the 2002 Rules would prevail notwithstanding anything contrary thereto contained in any other Service Rules, which would include the 1983 Rules. Consequently, if any of the provisions of the 2002 Rules run contrary to Rule 22(3) of the 1983 Rules, it is the former, and not the latter, which would prevail. If Rule 22(3) of the 1983 Rules is held to stipulate anything contrary to what is provided in the 2002 Rules, then, of-course, Rule 22(3) cannot be pressed into service by the 5th respondent-claim petitioner to contend that, since the said Rule requires him to be placed even above respondent nos. 6 to 11, the petitioners and respondent nos. 12 to 26 must automatically be placed below him in the seniority list of Assistant Commissioners.
(v) USE OF THE WORD "ONLY" IN RULES 5 TO 7 OF THE 2002 RULES: ITS EFFECT:
38. Rules 5, 6 and 7 of the 2002 Rules relate to determination of seniority where appointment is made by direct recruitment only, promotion is made only from a single feeding cadre, and promotion is made only from several feeding cadres respectively. The use of the word "only" in Rules 5 to 7 of the Uttar Pradesh Government Servants Seniority Rules, 1991 (for short the "1991 Rules"), similar to Rules 5 to 7 of the 2002 Rules, fell for consideration before the Supreme Court in Pawan Pratap Singh4, a detailed reference to which shall be made a little later in this order.
39. Before doing so, however, it is also necessary to note the submission of Mr. C.D. Bahuguna, learned Senior Counsel, that, in so far as determination of inter-se seniority between the 5th respondent-claim petitioner on the one hand, and respondent nos. 6 to 11 on the other is concerned, it is Rule 8(2)(b) read with Rule 6 of the 2002 Rules which would govern; the inter-se seniority between direct recruits is required to be determined as per Rule 5 read with Rule 8(2)(a) of the 2002 Rules; and, thereafter, inter-se seniority between direct recruits and promotees is required to be made in terms of Rule 8(3) of the 2002 Rules. Learned Senior Counsel would also contend that the judgment of the Supreme Court, in Pawan Pratap Singh4, relates to determination of inter-se seniority among direct recruits, and 20 determination of inter-se seniority between direct recruits and promotees did not arise for consideration therein.
40. In Pawan Pratap Singh4, the 1991 Rules provided for determination of seniority in different categories. Rule 5 made provision for determination of seniority in cases where, according to the service rules, appointments were made only by direct recruitment. The Uttar Pradesh Jail Executive Subordinate (Non- Gazetted) Service Rules, 1980 (the "1980 Rules" for short) were the relevant service rules for appointment to the posts of Deputy Jailors. As per Rule 5 of the 1980 Rules, there were two sources of recruitment to the post of Deputy Jailor, one by direct recruitment, and the other by promotion from amongst permanent Assistant Jailors, in the ratio of 50% each.
41. It is in the context of these Rules that the Supreme Court, in Pawan Pratap Singh4, held that the word 'only', in Rule 5 of the 1991 Rules, was of significance, and it was clear therefrom that Rule 5 had no application in determining the inter-se seniority of the 1991 and 1994 appointees, as the 1980 Rules provided for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion; it is only where the service rules, in the State, provided for appointment by direct recruitment alone, that Rule 5 of 1991 Rules came into play in determining seniority, and not otherwise; Rule 6 and Rule 7 of the 1991 Rules also had no application as these rules provided for determination of seniority where appointments are made by promotion only from a single feeding cadre, or only from several feeding cadres; Rule 8 of the 1991 Rules made a provision for determining seniority where, according to the service rules, appointments were made both by promotion and by direct recruitment; Rule 8 of the 1991 Rules would govern, since the 1980 Rules clearly provided for appointment to the posts of Deputy Jailor by two sources ie by direct recruitment as well as by promotion; though the controversy related 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 UPPSC, and the controversy did not relate to determination of inter-se seniority between direct recruits and promotees, that did not take away the applicability of Rule 8 of the 1991 Rules; it was so because in the 1991 Rules 21 the basis of categorization, for the purpose of determination of seniority, was the method and manner of appointment in the service rules; it was in this view of the matter, that Rules 5, 6, 7 and 8 of the 1991 Rules provided for determination of seniority amongst different categories of appointment made under the service rules; once it was held that Rule 8 was applicable in determining inter-se seniority, amongst the 1991 and 1994 recruits to the post of Deputy Jailor, it was clear that their seniority had to be determined on the basis of their substantive appointment; in so far as the present controversy was concerned, none of the provisos to Rule 8(1) were attracted, since the appointment orders, of the 1994 appointees, did not specify a back date nor were these appeals concerned with a situation where the 1991 appointees failed to join on time; these appeals were 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; the provisions of sub-rules (2) and (3) of Rule 8 were, therefore, also not attracted; sub-rule (1) of Rule 8, in unambiguous terms, stated that the seniority of persons, subject to the provisions of sub-rules (2) and (3), shall be determined from the date of the order of their substantive appointment; Rule 4(h) defined '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 was thus clear that, for determining inter-se seniority between two rival groups (1991 and 1994 appointees by direct recruitment), what was relevant was the date of the order of their substantive appointment; and, since the substantive appointment of 1991 appointees was much prior in point of time, they must rank senior to the 1994 appointees.
42. Construing the word "only" in Rule 5 of the 1991 Rules, similar to Rule 5 of the 2002 Rules, (the scope and ambit of which arises for consideration in the present case), the Supreme Court, in Pawan Pratap Singh4, held that it was clear from the use of the word "only" in Rule 5, that the said Rule had no application in determining inter-se seniority between direct recruits and promotees, and the said Rule came into play only where appointments were made only by direct recruitment, and not from two sources i.e. direct recruitment and promotion. Rules 6 and 7 of the 1991 Rules, which 22 fell for consideration in Pawan Pratap Singh4, are similar to Rules 6 and 7 of the 2002 Rules. Rule 8(1) of the 1991 Rules and its provisos, which were considered, in Pawan Pratap Singh4, are similar to Rule 8(1) of the 2002 Rules and its provisos.
43. It is no doubt true, contended by Mr. C.D. Bahuguna, learned Senior Counsel, that the dispute in Pawan Pratap Singh4 was between two batch of direct recruits, and was not a dispute regarding determination of inter-se seniority between direct recruits and promotees. Even for determining inter-se seniority between direct recruits the Supreme Court, in Pawan Pratap Singh4, held that it was Rule 8(1) which applied, and not Rule 5, since the source of recruitment to the post of Deputy Jailors was both by direct recruitment and by promotion. A fortiori, even in determining the inter-se seniority among promotees, it is not Rule 6 but Rule 8(1) which would apply. As a result, since respondents 6 to 11 were substantively appointed as Assistant Commissioners, long before the fifth respondent-claim petitioner was, respondents 6 to 11 were rightly shown above him in the seniority list, of Assistant Commissioners, dated 19.02.2015.
44. As held, in Pawan Pratap Singh4, the first proviso to Rule 8(1) is applicable only where appointments are made from a particular back date. While the complaint of the 5th respondent-claim petitioner is also that he ought to have been promoted either with respondent nos. 6, 7, 9, 10 and 11 on 20.01.2003 when the latter were promoted as Assistant Commissioners, or with respondent no. 8 who was promoted as an Assistant Commissioner on 21.06.2004, the fact remains that when the 5th respondent-claim petitioner was promoted as an Assistant Commissioner on 28.06.2007, the order of promotion did not specify any anterior date from which it would come into effect. In the claim petition, filed by him before the Tribunal, the fifth respondent herein did not seek any relief that he should have been promoted as Assistant Commissioner not from 28.06.2007, but from a back date i.e. the date on which respondents 6 to 11 were promoted as Assistant Commissioners.
45. From the facts narrated by Mr. C.D. Bahuguna, learned Senior Counsel, it does appear that appointment of the fifth respondent as Sales-Tax 23 Officer Grade II, was delayed, for no fault of his, by the Public Service Commission; and he was not promoted as Assistant Commissioner along with respondents 6 to 11, though he was placed above them in the final seniority list of Sales Tax Officers Grade-II (feeding cadre) dated 26.12.2001. In Pilla Sitaram Patrudu18, on which reliance is placed by Mr. C.D. Bahuguna, learned Senior Counsel, the 5th respondent was selected, by direct recruitment in the year 1977, as an Assistant Executive Engineer; all direct recruits, except the 5th respondent, were appointed in the year 1978; it was admitted that, in O.P. No. 7226/85, the Ernakulam Bench of CAT, by order dated 31.1.1990, had held that his appointment was delayed due to laches on the part of the Railway Administration; after his appointment in the year 1981, the fifth respondent passed his test within two years; when his case was not considered for promotion as Executive Engineer, he filed the O.A; the Tribunal, without deciding the inter-se seniority in the cadre of Asstt. Executive Engineers, directed the Railway Administration to consider his case for promotion as Executive Engineer for the years 1984, 1985 and 1986 and, if found fit for promotion in any of the posts, to give him promotion for that year, and to fix his seniority among Executive Engineers accordingly; pursuant thereto, the 5th respondent was considered and promoted as Executive Engineer; the Railway Administration did not challenge the order of the CAT in appeal before the Supreme Court; other persons, aggrieved by the direction issued by CAT, filed a review petition which was also dismissed, and that order became final; the petitioners, thereafter, challenged the said order by filing a separate O.A, and the Tribunal confirmed its earlier order; and, aggrieved thereby, the petitioners invoked the jurisdiction of the Supreme Court.
46. It is in this context that the Supreme Court held that it found no force in the contention that, as the inter-se seniority of Assistant Engineers was left open in the order, the directions given by CAT, to consider the case of the 5th respondent as Executive Engineer, and to determine his seniority on the basis of his promotion, was not valid in law; once he was found to be eligible according to the rules, then his seniority was required to be determined as per the procedure prescribed in the rules in vogue; on the contention that the fifth respondent was not qualified, since he had not 24 completed 8 years of required service, the Tribunal had recorded a finding that the two year period was relaxable in the case of reserved candidates; since he was selected by direct recruitment, the 5th respondent was entitled to be appointed as per rules; his appointment was delayed for no fault of his, and he came to be appointed in 1981; and he was, therefore, entitled to the ranking given in the select list, and for his appointment to be made accordingly.
47. The fact however remains that in the present case, despite an order promoting him as an Assistant Commissioner being passed only on 28.6.2007, the fifth respondent-claim petitioner did not avail his judicial remedies either questioning the validity of order granting him promotion only from 28.06.2007, or seeking any relief that he be promoted as an Assistant Commissioner from the date on which respondents 6 to 11 were promoted to the said post. The fifth respondent-claim petitioner only sought to be placed above the petitioner and respondents 12 to 26 (direct recruits) on the basis of Rule 6 of the 2002 Rules (catch-up rule) claiming that, on application of the said Rule, he was required to be placed above respondents 6 to 11 (promotees) in the seniority list of Assistant Commissioners as he was placed above them in the seniority list of Sales Tax Officers, Grade-II dated 26.12.2001; though he was promoted, long after respondents 6 to 11, were promoted as Assistant Commissioners, the catch-up rule, in Rule 6 of the 2002 Rules, required his seniority, in the feeding cadre of the Sales Tax Officer Grade-II, to be restored in the seniority list of Assistant Commissioners also; and, once he became senior to respondents 6 to 11 in the seniority list of Assistant Commissioners he, automatically, became senior to the petitioner and respondent nos. 12 to 26. It is only if Rule 6 of the 2002 Rules is applicable, and not Rule 8(1) thereof, would the fifth respondent- claim petitioner be justified in his aforesaid claim.
(vi) RULE 8(1) OF THE 2002 RULES: ITS SCOPE:
48. It is evident that, as he was not promoted as an Assistant Commissioner from a back date, the first proviso to Rule 8(1) has no application to the case of the fifth respondent-claim petitioner. As a result, in terms of Rule 8(1) of the 2002 Rules, seniority is required to be determined, in cases where appointments are made both by promotion and direct recruitment, from the date of order of their substantive appointment. Let us, at 25 this stage, take note of the judgments relied upon by learned counsel on either side in this regard.
49. In Akhouri Sachindra Nath10, the Supreme Court held that the promotee respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineers in the Bihar Engineering Service, Class II at the time when respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineers; as such they could not be given seniority, in the service of Assistant Engineers, over respondent Nos. 1 to 5; seniority, inter-se amongst Assistant Engineers in the Bihar Engineering Service, Class II, is considered on the length of service rendered as Assistant Engineers; and respondent Nos. 6 to 23 cannot be made senior to respondent Nos. 1 to 5, by the impugned Government orders, as they entered the said Service by promotion, after respondent Nos. 1 to 5 were directly recruited in the quota of direct recruits.
50. In The Direct Recruit Class-II Engineering Officers' Association and Ors.17, the Supreme Court held that, once the incumbent is appointed to a post according to rules, his seniority should be counted from the date of his appointment, and not the date of his confirmation; the corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules, and is made as a stop-gap arrangement, officiation in such a post cannot be taken into account for considering seniority.
51. In Dinesh Kumar Sharma2, the question which fell for consideration was whether the respondent had the right to claim promotion and seniority from 1995-96 when the vacancy arose, or whether seniority should be reckoned from the date of substantive appointment which was 1999. After holding that an employee will be considered a member of a cadre, from the date of his/her substantive appointment in the cadre after selection, the Supreme Court held that it was clear, from the above, that a person appointed on promotion shall not get seniority of any earlier year, but shall get the seniority of the year in which his/her appointment is made; in the present fact situation, the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96, but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999;
and, likewise, the seniority also will be counted, against 26 promotion/appointment in the cadre, from the date of issuance of the order of substantive appointment in the said cadre, i.e. from 19.11.1999.
52. In Ashok Kumar Srivastava3, Rule 21 of the Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako Ki Seva Niyamawali, 1990 (the "1990 Rules" for short), by which the 1st respondent was governed, read thus:
21. Seniority - (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and in other cases, it will mean the date of issue of the order:
Provided further that, if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under Sub-rule (3) of Rule 18:
Provided also that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reason shall be final.
53. It is in the context of Rule 21 of the 1990 U.P. Rules, (more or less identical to Rule 8 of the 2002 Rules), that the Supreme Court, in Ashok Kumar Srivastava3, held that the seniority of candidates was required to be determined from the date of the order of substantive appointment; the proviso carved out an exception by stipulating that, if the appointment order specified a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the order of substantive appointment, otherwise it would be the date of the issue of the order; the second proviso clarified how seniority should be determined when more than one order of appointment is issued in respect of any one selection; from the aforesaid, it was clear that, unless otherwise stipulated in the letter of appointment, seniority has to be computed from the date of appointment to the post; and, in the case on hand, nothing had been stipulated in the letter of appointment.
27(a) SENIORITY MUST BE DETERMINED FROM THE DATE OF SUBSTANTIVE APPOINTMENT:
54. No person can be promoted with retrospective effect from a date when he was not born in the cadre, so as to adversely affect others who have been appointed in the meanwhile. Amongst members of the same grade, seniority is reckoned from the date of their initial entry into the service. (Akhouri Sachindra Nath10). Seniority cannot be given retrospectively from a date when an employee was not even born in the cadre, unless it is expressly provided by the relevant service rules. (Pawan Pratap Singh4; Ashok Kumar Srivastava3; Mr. Rakesh Nautiyal vs. State of Uttarakhand & others26). Inter-se seniority in a particular service should be determined as per 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 and another, or between one group of officers and the other recruited from different sources. Any departure, therefrom, in the statutory rules must be consistent with the requirement of Articles 14 and 16 of the Constitution. (Pawan Pratap Singh4; Ashok Kumar Srivastava3).
55. The legal position, with regards determination of seniority in service, is as follows: (i) the effective date of selection should be understood in the context of the service rules under which the appointment is made. (ii) inter-se seniority in a particular service should be determined as per 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 and the other, or between one group of officers and others recruited from different sources. Any departure therefrom, in the statutory rules, must be consistent with the requirement of Articles 14 and 16 of the Constitution;
(iii) ordinarily, notional seniority may not be granted from a back date and, if it is done, it must be based on objective considerations and on a valid classification. It must be traceable to the statutory rules; (iv) seniority cannot be reckoned from the date of occurrence of the vacancy, and cannot be given retrospectively, unless it is expressly provided by the relevant service rules. Seniority cannot be given retrospectively from a date when an employee was not even born in the cadre as it may adversely affect employees who were 28 validly appointed in the meantime. (Pawan Pratap Singh4; and Mr. Rakesh Nautiyal26).
56. In terms of Rule 8(1) of the 2002 Rules, inter se seniority, between direct recruits and promotes, is required to be determined on the basis of their substantive appointment. As a result, the petitioners and respondent nos. 12 to 26 would be required to be placed above the 5th respondent-claim petitioner in the seniority list of Assistant Commissioners, since the former were substantively appointed by direct recruitment as Assistant Commissioners on 06.07.2005 nearly two years before the 5th respondent-claim petitioner was substantively appointed by promotion as an Assistant Commissioner on 28.06.2007.
(vii) USE OF THE WORDS "SUBJECT TO" IN RULE 8(1) OF THE 2002 RULES: ITS SCOPE:
57. Mr. C.D. Bahuguna, learned Senior Counsel, would however contend that Rule 8(1) is expressly made subject to Rule 8(2) and (3) and, in case Rules 8 (2) and (3) apply, then the mode of determination of inter-se seniority, between direct recruits and promotes, prescribed in Rule 8(1) of the 2002 Rules, would have no application. The phrase 'subject to', used in Rule 8(1) of the 2002 Rules, conveys the idea of a provision yielding place to another provision, or other provisions, to which it is made subject. (Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram27; The Secretary, Board of Revenue Trivandrum and Ors22; and Kerala State Electricity Board vs. The Indian Aluminium Co. Ltd.28). If Rules 8(2) and (3) are applicable, then inter-se seniority must be determined in terms thereof, and not as per Rule 8(1) of the 2002 Rules.
(a) WHAT DO THE WORDS "ANY ONE SELECTION" IN RULES 8(2) AND (3) OF THE 2002 RULES MEAN?
58. The question, however, is whether Rules 8(2) and (3) of the 2002 Rules are attracted? Rule 8(2)(a), as noted hereinabove, stipulates that 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, and (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. It is no doubt true that, since 29 Rule 8(2)(b) itself requires seniority inter-se of persons appointed by promotion to be determined in accordance with Rule 6 (which is a carry- forward rule similar to Rule 22(3) of the 1983 Rules), the inter-se seniority of persons so appointed shall be the same as it was in the feeding cadre. Rule 6 of the 2002 Rules and Rule 22(3) of the 1983 Rules would only apply, provided that Rule 8(2)(b) is applicable to the case on hand.
59. The significant words in Rule 8(2) is "any one selection". While it is contended, on behalf of the petitioners, that the aforesaid words can only mean 'a year of recruitment', as defined in Rule 3(o) of the 1983 Rules, Mr. C.D. Bahuguna, learned Senior Counsel, would contend to the contrary and submit that, accepting such a construction, would result in the substitution of words in Rule 8(2)(a) and (b) of the 2002 Rules which is impermissible a literal construction should be applied to Rule 8(2)(a) and (b); and, when so applied, the words "any one selection" used in Rule 8(2)(b) must take its colour from Rule 16 of the 1983 Rules.
60. The words "any one selection" are used not only in Rules 8(2)(a) and (b), and Rule 8(3) of the 2002 Rules, but also in Rule 19(3) of the 1983 Rules. These words are, however, not defined expressions either in the 1983 Rules or in the 2002 Rules. The scope and ambit of the words "any one selection" is no longer res integra. A Division Bench of this High Court in Mr. Rakesh Nautiyal26, held that sub-rule (1) of Rule 8 of the Uttar Pradesh Government Servants Seniority Rules, 1991 (the "1991 Rules" for short) dealt with seniority of persons, who had been promoted as well as persons who had been directly appointed; it provided that both the said classes of persons shall be entitled to their seniority from the date of their substantive appointment, subject to the other sub-rules contained in the said Rule; sub-rule (3) of Rule 8 said that, where appointments are made both by promotion and direct recruitment on the result of any one selection, the seniority of promotees vis- à-vis direct recruits shall be determined in a cyclic order (the first being a promotee), as far as may be, in accordance with the quota prescribed for the two sources; it then gave an illustration and thereby made it clear that the first would be a promotee, the second would be a direct recruit, and so on; the learned counsel for the petitioners had submitted that the word "one selection", used in Sub-Rule (3) of Rule 8, should be read as selection in one 30 recruitment year; it was submitted that, in order to give true meaning to the intention contained in sub-rule (3) of Rule 8, recourse to supplying such meaning should be taken, otherwise the sub-rule would become otiose; it was not possible to conclude that, in one selection, promotion and direct recruitment cannot be considered; that being the conclusion, it would not be proper to expand the meaning of Sub-Rule (3) of Rule 8 of the 1991 Rules; in the event, the same was the intention, there was no difficulty on the part of the framers of the rule to incorporate the same in so many words; since it was not possible to definitely hold that, in one selection, promotion and direct recruitment cannot be considered, it would be beyond the competence of the Court to attempt to give further clarification to, or amplification of, Sub-Rule (3) of Rule 8 of the 1991 Rules, as it was not required for the purpose of saving the same; the conclusion, therefore, would be that, if Sub-Rule (3) of Rule 8 does not apply, the seniority, vis-à-vis the petitioners and the respondents, is required to be fixed only on the basis of the mandate contained in Sub-Rule (1) of Rule 8 of the 1991 Rules; there was no dispute that the petitioners were substantively appointed on being promoted after the respondents were substantively appointed either by direct recruitment or by promotion; and the challenge thrown by the petitioners to the final seniority list, impugned in the writ petitions, was of no substance.)
(b) COURTS MUST CONSTRUE PROVISIONS WITHOUT ADDING WORDS THERETO:
61. As held by the Division Bench, in Mr. Rakesh Nautiyal26, the words "any one selection" in Rules 8(2)(a) and (b) cannot be construed as a selection relating to a recruitment year, for it is well settled that a provision must be construed according to the natural meaning of the language used. The Court, in interpreting a Statute or a statutory rule, must therefore proceed without seeking to add words which are not to be found in the Statute or the statutory rule, (Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO29; Union of India v. Mohindra Supply Co.30; Bank of England v. Vagliano Bros31; CIT v. Anjum M.H. Ghawala32; J. Mr. Srinivasa Rao v. Govt. of A.P.33), for Courts cannot re-write, recast or reframe legislation as it has no power to legislate. (Rohitash Kumar v. Om Prakash Sharma34; Hardeep Singh v. State of Punjab35). Statutory language must always be given presumptively the most natural and ordinary 31 meaning which is appropriate in the circumstances, (Chertsey Urban District Council v. Mixnam's Properties Ltd36), and must be construed according to the rules of grammar. (State of U.P. v. Dr. Vijay Anand Maharaj37). Any interpretation which leads to addition/deletion of words in a statute should not be adopted.
62. It is difficult for us to accept the submission of Mr. C.D. Bahuguna, learned Senior Counsel, that Rule 8(2)(b) of the 2002 Rules takes its colour from Rule 16 of the 1983 Rules, since Rule 16 merely prescribes the manner of selection by promotion to the posts of Assistant Commissioner, and nothing more. The said rule does not relate to determination of inter-se seniority between direct recruits and promotees. The question, which then arises for consideration, is what do these words "any one selection" mean?
(c) GOLDEN RULE OF INTERPRETATION IS THE LITERAL CONSTRUCTION OF A STATUTORY RULE:
63. The golden rule of interpretation of statutes is its literal construction. Where the language of an enactment is plain and clear upon its face, and is susceptible to only one meaning, then, ordinarily, that meaning should be given by the Court. In such a case the task of interpretation can hardly arise. (Union of India v. Sankalchand Himatlal Sheth38). The duty of the Court is to give effect to the intention of the legislature, as that intention is to be gathered from the language employed having regard to the context in connection with which it is employed. (Banarsi Debi v. I.T. Officer39; Attorney- General v. Carlton Bank40). The primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. (Unique Butyle Tube Industries Pvt. Ltd., v. Uttar Pradesh Financial Corporation41). The legislature is deemed to intend and mean what it says. The need for interpretation arises only when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the legislature. (ITC Ltd. v. Commissioner of Central Excise, New Delhi42). As the statute is an edict of the legislature, the language employed therein is the determinative factor of legislative intent. (Raghunath Rai Bareja v. Punjab National Bank43; Shiv Shakti Coop. Housing Society v. Swaraj Developers44).
3264. In construing a statutory provision, the first and foremost rule of construction is the literal construction. All that the Court has to see, at the very outset, is what does the provision say. If the provision is unambiguous and if, from that provision, the legislative intent is clear, the Court need not call into aid other rules of construction of Statutes (Raghunath Rai Bareja43; Hiralal Ratanlal v. STO45), nor would it be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. (Kanai Lal Sur v. Paramnidhi Sadhukhan46), as it is well recognised that the language used speaks the mind and reveals the intention of the framers. (C.I.T. v. T.V. Sundaram Iyengar (P) Ltd47).
65. Efforts should be made to give meaning to each and every word used by the legislature, and it is not a sound principle of construction to brush aside words in a statute as being inapposite surplussage, if they can have a proper application in circumstances conceivable within the contemplation of the Statute. (Gurudevdatta v. State48; Justice Chandrashekaraiah v. Janejere49). The language employed in a Statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake and to have intended to say what it has said. Assuming there is a defect in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result. (Raghunath Rai Bareja43; Ombalika Das v. Hulisa Shaw50; CIT v. Sodra Devi51; Prakash Nath Khanna v. CIT52; and Delhi Financial Corpn. v. Rajiv Anand53). It would be impermissible to call in aid any external aid of construction to find out the hidden meaning. (D.D. Joshi v. Union of India54). The other rules of interpretation i.e., the mischief rule (Heydons rule), purposive interpretation, etc can only be resorted to when the plain words of a Statute are ambiguous or lead to no intelligible result or, if read literally, would nullify the very object of the Statute or statutory rule. Where the words of a Statute or a rule are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal rule. (Swedish Match AB v. Securities and Exchange Board of India55; and Raghunath Rai Bareja43).
3366. It is no doubt true that a fortress ought not to be made of the dictionary, as a Statute or rule always has some purpose or object to accomplish, whose discovery is the surest guide to its meaning. (Union of India & others v. Sankalchand Himatlal Sheth56). While it is permissible to look into the object of the Legislation (Inder Sain v. State of Punjab57), if the provision is unambiguous and if, from that provision, the legislative intent is clear, we need not call into aid the other rule of construction of statutes. (Hiralal Rattanlal45). It is only where the words, according to their literal meaning, produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, the Court would be justified in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear. (Sankalchand Himatlal Sheth56; River Wear Commissioners v. Willam Adamson58). It must be borne in mind that a provision is not ambiguous merely because it contains a word which, in different contexts, is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is ambiguous only if it contains a word or phrase which, in that particular context, is capable of having more than one meaning. (Kirkness (Inspector of Taxes) v. John Hudson & Co., Ltd.59).
67. As noted hereinabove, Rule 14 of the 1983 Rules requires the appointing authority to determine, and intimate the Commission, the number of vacancies on the post of Assistant Commissioners to be filled during the course of the year. On being so intimated, the exercise of selecting Assistant Commissioners for their appointment, either by promotion or by direct recruitment, is required to be undertaken by the Uttarakhand Public Service Commission. As the stipulation is of "one selection", and not "selection in one year" or "selection in a recruitment year", it is not necessary that the selection must take place in one year. While the process of selection may spread over more than a year, it must relate to "one selection" to satisfy the requirement of the Rule. "One selection" can be said to take place, say in cases where the State Government sends one intimation for selection of candidates for appointment to the post of Assistant Commissioners both by promotion and by direct recruitment or, even in cases where different 34 requisitions are sent, the Public Service Commission undertakes the selection process simultaneously, for selecting candidates both by promotion and by direct recruitment. It is only then can "one selection" be said to have taken place, in which event alone would Rules 8(2)(a) and (b) be attracted, and not otherwise.
68. Admittedly, in the present case, the selection process undertaken by the Public Service Commission was not one, but was separate, that too at different points of time, also in different years. While the petitioners and respondent nos. 12 to 26 were appointed by direct recruitment on 06.07.2005, the 5th respondent was promoted as Assistant Commissioner two years thereafter on 28.06.2007. Neither is it contended before us that the direct recruitment and promotion exercise related to one selection, nor has any material been placed on record in support of any such claim. Consequently, Rules 8(2)(a) and (b), which would apply only in determining inter-se seniority of persons appointed on the result of "any one selection", has no application to the facts of the present case. The inter-se seniority between the petitioners and respondent nos. 12 to 26 on the one hand, and the 5th respondent-claim petitioner on the other, must therefore be determined only in terms of Rule 8(1) i.e. from the date of the order of their substantive appointment. Rule 8(3) of the 2002 Rules, on which great reliance is placed by Mr. C.D. Bahuguna, learned Senior Counsel, is also not applicable to the case on hand. The said Rule also uses the words "any one selection" as is used in Rule 8(2). Since, admittedly, appointments were not made, both by promotion and direct recruitment, on the result of "any one selection", the cyclic order prescribed in Rule 8(3) would also be inapplicable to the case on hand.
(viii) COULD THE PETITIONER AND RESPONDENTS 12 TO 26 HAVE BEEN PLACED IN A BUNCH, ABOVE THE FIFTH RESPONDENT, IN THE SENIORITY LIST:
69. In support of his submission that, in terms of Rule 8(3), the petitioner and respondent nos.12 to 26 could not have been placed in a bunch, above the fifth respondent in the seniority list of Assistant Commissioners, reliance is placed by Mr. C.D. Bahuguna, learned Senior Counsel, on the judgment of the Supreme Court in S.B. Patwardhan16. Learned counsel would submit that the action of the State Government, in placing the 35 petitioners and respondent nos. 12 to 26 (all of whom were direct recruits) in a bunch, above the fifth respondent-claim petitioner (a promotee), is illegal.
70. In S.B. Patwardhan16, the relevant rule stipulated that the probationers recruited directly to the Bombay Service of Engineers, Class II cadre in any year shall, in a bunch, be placed senior to promotees confirmed during that year. It is in this context that the Supreme Court held that it was patent that this clause was highly discriminatory against the promotees, and accorded a preferential treatment to direct recruits; its principal justification was that persons, who were promoted as officiating Deputy Engineers, did not belong to Class II cadre so long as they were not confirmed as Deputy Engineers, whereas direct recruits, appointed on probation as Deputy Engineers, entered that class or cadre on the very date of their appointment since, on satisfactory completion of probation, confirmation is guaranteed to them; though drawn from two different sources, the direct recruits and promotees constituted a single integrated cadre; they discharged identical functions, bore similar responsibilities, and acquired an equal amount of experience in their respective assignments; yet Clause (iii) of Rule 8 provided that probationers, recruited during any year, shall, in a bunch, be treated as senior to promotees confirmed in that year; the plain arithmetic of this formula was that a direct recruit appointed on probation, say in 1966, was to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer, say in 1956, but was confirmed in 1966 after continuous officiation till then; this formula gave to the direct recruits even the benefit of their one year's period of training, and another year's period of probation, for the purposes of seniority, and denied to promotees the benefit of their long and valuable experience; if there was some intelligible ground for this differentiation, bearing a nexus with efficiency in public services, it might perhaps have been possible to sustain such a classification; instead of adopting an intelligible differentia, Rule 8 (iii) left seniority to be determined on the sole touchstone of confirmation which seemed indefensible; confirmation was one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies; confirmation did not have to conform to any set rules;
36and the question whether an employee should be confirmed or not depended on the sweet will and pleasure of the government.
71. The cyclic order, prescribed in Rule 8(3) of the 2002 Rules, would have disabled the State Government from placing the petitioner, along with respondent nos. 12 to 26, in a bunch above the fifth respondent-claim petitioner provided, of-course, that the said Rule was applicable. The cyclic order stipulated in Rule 8(3) would apply only where appointments are made both by promotion and by direct recruitment on the result of "any one selection" and as, admittedly in the present case, the appointment of the petitioners and respondent nos. 12 to 26 on the one hand (all direct recruits), and the 5th respondent-claim petitioner (a promotee) on the other, were not made as a result of "any one selection", Rule 8(3) has no application.
72. Consequently, it is Rule 8(1) of the 2002 Rules which applies and, taking the date on which the order of substantive appointment was made, the petitioner and respondent nos. 12 to 26, who were all appointed by direct recruitment as Assistant Commissioners on 06.07.2005, have been rightly placed above the 5th respondent-claim petitioner (promotee), who was appointed by promotion as an Assistant Commissioner only on 28.06.2007. As a corollary thereto, the seniority list of Assistant Commissioners dated 19.10.2015, wherein the inter-se seniority of direct recruits and promotees was determined on application of Rule 8(1) of the 2002 Rules, must be upheld, and the order of the Tribunal, holding to the contrary, must be set aside.
73. As Mr. C.D. Bahuguna, learned Senior Counsel, has raised other contentions in support of the validity of the order of the Tribunal, whereby the seniority list dated 19.02.2015 was set aside, it is necessary to examine those contentions also.
II. SHOULD THE PETITIONERS BE NON-SUITED ON GROUNDS
OF DELAY, AND COULD THE EARLIER FINAL SENIORITY
LIST DATED 14.11.2009 HAVE BEEN REVISED AGAIN
LATER?
(a) CONTENTIONS URGED ON BEHALF OF THE PETITIONERS:
74. Mr. J.P. Joshi, learned Addl. Advocate General, would rely on Shiba Shankar Mohapatra v. State of Orissa60, in support of his 37 submission that delay and laches, in revising the seniority list, is of no consequence. He would also submit that the earlier seniority list, finalized on 14.11.2009, was based on Rule 6 of the 2002 Rules; objections were received thereto in October, 2010 and May, 2011; and an order was passed, and the seniority list was revised, after giving the fifth respondent-claim petitioner an opportunity of being heard.
75. Mr. Shashank Pandey, learned counsel for the petitioner, would submit that the contention, regarding revision of the 2009 seniority list being impermissible, cannot be examined in these writ proceedings since the orders passed by the Division Bench earlier have been set-aside by the Supreme Court; and, in any event, Rule 9 of the 2002 Rules does not prohibit the 14.11.2009 seniority list being revised later on 19.02.2015.
(b) CONTENTIONS URGED ON BEHALF OF THE FIFTH RESPONDENT-CLAIM PETITOINER:
76. On the other hand Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the fifth respondent-claim petitioner, would submit that it is on the basis of the 14.11.2009 final seniority list that the fifth respondent, the petitioners and respondents 12 to 26 were all promoted as Deputy Commissioners; not only did they accept promotion on the basis of the 2009 final seniority list, they also received the benefit of the higher pay-
scales, applicable to the post of Deputy Commissioner, without protest or demur; having accepted promotion, and having received the benefit of the higher pay-scale applicable to the post of Deputy Commissioner (i.e. the pay- scale of Rs. 15000-39500 as against the pay-scale of Assistant Commissioner of Rs. 8000-13500), it is not open to the petitioner, and respondents 12 to 26, thereafter to question the validity of the 2009 final seniority list; the petitioner cannot, at this stage, question the order of the Tribunal since he and others had approached the Supreme Court against the order of the Division Bench, and had withdrawn their Special Leave Petitions; consequently the order of the Tribunal, as affirmed by the order of the Division Bench of this Court, would bind the petitioners in Writ Petition (S/B) Nos.297 and 326 of 2017, as both these orders have attained finality in so far as they are concerned; the 2009 final seniority list was unilaterally revised, more than 5 years after it was published on 14.11.2009, by the order impugned before the Tribunal dated 38 19.02.2015; such belated revision is liable to be set-aside on the ground of inordinate delay and latches; the fifth respondent-claim petitioner was rightly shown as senior in the final seniority list issued on 14.11.2009; a seniority list once finalized cannot be revised, since finality is attached thereto under Rule 9 of the 2002 Rules; while it was open to the petitioners to question the validity of the 2009 final seniority list in judicial proceedings, the State Government could not, unilaterally, revise the said seniority list which had attained finality, without judicial intervention; if such a course of action is held permissible, it would defeat the sanctity attached to a final seniority list; the 2002 Rules do not contain any provision for objections to be entertained after a final seniority is issued; it is only when power is explicitly conferred by the Rules, can a final seniority list be revised; and since the petitioner has not been able to show the source of power, to revise the final seniority list published on 14.11.2009, the Division Bench was justified in passing the order in Writ Petition (S/B) Nos.279 and 326 of 2017 dated 24.09.2018, and in setting aside the seniority list dated 19.02.2015 on this score.
(c) OBJECTIONS TO THE SENIORITY LIST DATED 14.11.2019 APPEAR TO HAVE BEEN RAISED BY ANOTHER OFFICER BEFORE PROMOTIONS WERE MADE TO THE HIGHER POST OF DEPUTY COMMISSIONER:
77. The submission of Mr. C.D. Bahuguna, learned Senior Counsel, that it is only after the petitioner, the fifth respondent and respondents 12 to 26 were all promoted as Deputy Commissioners on 26.04.2011, were representations filed by the petitioner and respondents 13 and 15, seeking revision of the final seniority list of Assistant Commissioners published earlier on 14.11.2009, is partially true, for it does appear, that even before promotions were effected to the post of Deputy Commissioners on 26.04.2011, objections were received, to the final seniority list dated 14.11.2009, from Mr. B.K. Palti in October, 2010.
(d) JUDGMENTS ON THE CONSEQUENCES OF A BELATED CHALLENGE TO THE VALIDITY OF A SENIORITY LIST:
78. Learned counsel on bother sides have referred to several judgments on the consequences of delay in challenging the validity of the seniority list which, in the present case, is the final seniority list dated 14.11.2009. The law laid down therein is that, anyone who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible 39 otherwise, in addition to creation of a sense of insecurity in the minds of Government servants, there would also be administrative complications and difficulties. (K.R. Mudgal and Ors. v. R.P. Singh and Ors61; Shiba Shankar Mohapatra60). Although security of service cannot be used as a shield against administrative action for the lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public service is a feeling of security. While it is difficult to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list, after having been settled once, should not be re-opened after a lapse of many years; raking up old matters like seniority, after a long time, is likely to result in administrative complications and difficulties. It would, therefore, be in the interest of efficiency of service that such matters should be given a quietus after a lapse of some time. (Malcom Lawrance Cecil D'Souza v. Union of India and Ors62; K.R. Mudgal61; and Shiba Shankar Mohapatra60).
79. Seniority should not be re-opened after a lapse of a reasonable period as that results in disturbing the settled position which is not justifiable.
Inordinate delay in making a grievance is sufficient to decline interference under Article 226. (B.S. Bajwa v. State of Punjab and Ors63; Shiba Shankar Mohapatra60). It would be a sound and wise exercise of jurisdiction for the Court to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief, and who stand by and allow things to happen and then approach the Court to put forward stale claims, and try to unsettle settled matters. (P.S. Sadasivaswamy1; Shiba Shankar Mohapatra60; Smt. Sudama Devi v. Commissioner and Ors64; State of U.P. v. Raj Bahadur Singh and Anr65; and Northern Indian Glass Industries v. Jaswant Singh and Ors66).
80. Challenge to seniority as has been fixed, and which has remained in existence for a reasonable period, should not be entertained. A seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority, and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing a satisfactory explanation. (K.R. Mudgal61; Shiba Shankar 40 Mohapatra60). Delay and laches in challengintg the seniority list is always fatal, but in case the party satisfies the Court regarding the delay, the case may be considered. (Dinkar Anna Patil and Anr. vs. State of Maharashtra67; Shiba Shankar Mohapatra60).
81. All the aforesaid judgments related to a belated challenge in Courts/Tribunals to the validity of a seniority list. The final seniority list dated 14.11.2009 was not even challenged in Courts, much less was it interdicted in judicial proceedings. The said final seniority was revised by the State Government, on its own accord, merely on representations received from some officers who felt aggrieved thereby.
(e) THE ORDER OF THE DIVISION BENCH, WHEREIN THESE QUESTIONS WERE CONSIDERED, WAS SET-ASIDE BY A CONSENT ORDER OF THE SUPREME COURT:
82. Both the questions of inordinate delay in challenging the validity of the seniority list dated 14.11.2009, and the change in status of a number of employees in the interregnum, (on their having been promoted as Deputy Commissioners, on the basis of the final seniority list of Assistant Commissioners dated 14.11.2009 before representations were filed, by the petitioner and respondent nos.13 and 15, seeking its revision), were considered by the Division Bench, in its order in Writ Petition (S/B) Nos. 297 and 326 of 2017 dated 24.09.2018, and the challenge to the validity of the order of the Tribunal was rejected, and the writ petitions were dismissed.
83. On the order of the Division Bench being carried in appeal by the State of Uttarakhand, the Supreme Court, with the consent of learned counsel for the parties (which, evidently, included the counsel appearing on behalf of the fifth respondent-claim petitioner also), set aside the said order of the Division Bench, and remanded the matter to this Court to consider whether it is Rule 6 or Rule 8 of the 2002 Rules which is applicable to the case on hand.
Having chosen not to sustain the order of the Division Bench before the Supreme Court, and having consented to an order of remand being passed, that too only to the limited extend of determining whether it is Rule 6 or Rule 8 of the 2002 rules which is applicable, it is not open to the fifth respondent- claim petitioner to put forth the very same submissions, made before the Division Bench earlier, all over again before us.
4184. It is true that the Supreme Court, in its order of remand dated 27.01.2020, did not examine the consequences of the parties to these proceedings, (including the petitioner, the fifth respondent and respondents 12 to 26), being promoted as Deputy Commissioners on the basis of the earlier final seniority list dated 14.11.2009. The fact, however, remains that the order of the Division Bench was set aside, by the Supreme Court, with the consent of parties. While the Supreme Court has, no doubt, held that they were not commenting on the merits or de-merits of the contentions, we cannot ignore the fact, that it is with the consent of all the learned counsel before it, that the Supreme Court had set aside the order of the Division Bench referred to hereinabove.
85. Nothing prevented the fifth respondent-claim petitioner from seeking an adjudication, on the merits of the order of the Division Bench, in Writ Petition (S/B) Nos. 297 and 326 of 2017 dated 24.09.2018, before the Supreme Court. Having consented to an order of remand being passed by the Supreme Court, and for the order of the Division Bench to be set-aside, the fifth respondent-claim petitioner cannot re-agitate the very same contentions, which were considered by the Division Bench earlier. We have already held, earlier in this order, that it is Rule 8(1) of the 2002 Rules which would govern determination of inter-se seniority; it is the inter-se seniority, as determined in the final seniority list dated 19.02.2015, which is valid; the petitioner and respondent nos. 12 to 26 have been rightly shown above the 5th respondent- claim petitioner therein; and the order of the Tribunal, in this regard, is liable to be set aside. As, in terms of the order of the Supreme Court, we were required to examine the applicability of Rules 6 and 8 of the 2002 Rules, it would be inappropriate for us, having held that the seniority list dated 19.02.2015 is in accordance with the Rules, and the order of the Tribunal, holding to the contrary, is invalid, to take a u-turn and uphold the order of the Tribunal after re-examining the questions agitated earlier before the Division Bench.
86. There is merit in the submission of Mr. C.D. Bahuguna, learned Senior Counsel, that, since the petitioners in Writ Petition (S/B) Nos. 297 and 326 of 2017 had withdrawn the Special Leave Petitions, filed before the 42 Supreme Court, on 11.07.2019, the order of the Division Bench, in Writ Petition (S/B) Nos. 297 and 326 of 2017 dated 24.09.2018, has attained finality in so far as they are concerned; and it may not be open to them, thereafter, to again question the validity of the order of the Tribunal, which was affirmed by the Division Bench. A judgment inter parties, which has attained finality, cannot be reopened / reagitated in subsequent legal proceedings and, since the petitioners had withdrawn the Special Leave Petitions filed by them before the Supreme Court, the order of the Division Bench has attained finality and is binding inter-parties.
87. The fact, however, remains that the Supreme Court has set aside all the above referred orders, of the Division Bench of this Court, in the appeals preferred thereaginst by the State of Uttarakhand. Nothing prevented the 5th respondent-claim petitioner from bringing the fact, that the petitioners had earlier withdrawn the Special Leave petitions filed by them, to the notice of the Supreme Court when the Civil Appeals, preferred by the State of Uttarakhand, were listed before it and an order was passed on 27.01.2020 setting aside the said orders. As the earlier orders of the Division Bench no longer exist, it matters little that the said order has attained finality in so far as the petitioners, in Writ Petition (S/B) Nos. 297 and 326 of 2017, are concerned.
(f) IS IT OPEN TO THE STATE GOVERNMENT, ON ITS OWN ACCORD AND IN THE ABSENCE OF JUDICIAL INTERVENTION, TO REVISE A FINAL SENIORITY LIST?
88. On the question whether it is permissible for the final seniority list dated 14.11.2009 to be revised, by the Government on its own accord, it is necessary to note that Part-III of the 2002 Rules relates to the 'seniority list', and Rule 9 thereunder relates to preparation of the seniority list. Rule 9(1) stipulates that, as soon as may be after appointments are made to a service, the appointing authority shall prepare a tentative seniority list of persons appointed substantively to the service in accordance with the provisions of the 2002 Rules. Rule 9(2) stipulates that the tentative seniority list shall be circulated amongst the persons concerned inviting objections, by a notice of a reasonable period which shall not be less than seven days from the date of circulation of the tentative seniority list. Rule 9(3) stipulates that no objections, against the vires or validity of these Rules, shall be entertained.
43Rule 9(4) stipulates that the appointing authority shall, after disposing of the objection by a reasoned order, issue a final seniority list. Rule 9(5) provides that it shall not be necessary to prepare a seniority list of the cadre to which appointments are made only by promotion from a single feeding cadre. Finality is attached to a seniority list under Rule 9(4) of the 2002 Rules.
89. As reliance is placed, on behalf of the petitioners, on certain judgments of the Supreme Court to contend that a final seniority list can always be revised, it is necessary to take note of its contents. In K.R. Raghavan11, on which reliance is placed by Mr. Shashank Pandey, learned counsel for the petitioner, a Full Bench of the Delhi High Court held that administrative action is divisible into two broad classes; on the one hand is a ministerial act where the reasoning process is minimal, and almost routine; along with this may also be grouped, exercise of discretionary power where the administrative authorities are entitled to choose alternative courses of action; on the other hand is an administrative decision where the process involves an objective standard, on the determination of which opinions may differ; the reasoning process takes into account the pros and cons, and then a decision is arrived at; and this distinction is important as administrative action is always reviewable, while an administrative decision is reviewable only in special circumstances.
90. In K. Ranganathan5, on which reliance is placed by Mr. J.P. Joshi, learned Additional Advocate General, the Supreme Court held that there were two periods with respect to which the power to alter seniority had to be examined; the first period was upto October 1, 1973, and the second commenced thereafter; in the first period, there was a relationship of employer-employee between the Government and the transferred employees; hence, the Government had every right to correct or amend the seniority of the employees upto that date; if, therefore , the Government had advertently or inadvertently committed any error in preparing the seniority list upto October 1, 1973, or because of the decisions of the Courts it had to amend the said seniority list, not only did it have the power to do so, but it was the only authority which could do it; and the seniority list, which was corrected by the Government, was the seniority list on or before October 1, 1973.
4491. The words used in Rule 9(4) are "final seniority list", which would show that finality is attached to such a list. It is, however, contended on behalf of the petitioners that, since Rule 9 does not explicitly prohibit revision of even a final seniority list, nothing prevents the State Government from revising it again on its own accord. Such a contention, if accepted, would confer power on the State Government to revise a final seniority list ad infinitum, which would render the word "final" in Rule 9(4) redundant and inapposite surplusage, besides creating uncertainty and confusion in the "services of the State". While the State Government would, undoubtedly, be obliged to revise even a final seniority list, if they are directed to do so by the High Court or the Tribunal, it is difficult to agree with the submission, urged on behalf of the petitioners, that the State Government can, on its own accord and merely on receipt of representations from persons who are aggrieved by the final seniority list, revise the final seniority list. While it is true that Rule 9 does not contain an explicit prohibition, the said Rule does not permit the State Government, to revise a final seniority list on its own accord, either. Absence of a provision, providing for a contingency, is a clear indication of the absence of the power contended. (Shambhoo Narain Singh15).
92. In compliance with the order of the Supreme Court dated 27.01.2020, we undertook a comprehensive examination of the 1983 and the 2002 Rules and have, earlier in this order, held that the final seniority list dated 19.02.2015 is valid as it was prepared rightly applying Rule 8(1) of the 2002 Rules and has correctly determined the inter-se seniority between direct recruits and promotees; and the final seniority list dated 14.11.2009 had wrongly determined the inter-se seniority erroneously applying Rule 6 read with Rule 8(2)(b) of the 2002 Rules, both of which have no application. As we were specifically directed by the Supreme Court to determine this question, and as we are satisfied that it is Rule 8(1) and not Rule 6 which is applicable in determining inter se seniority between direct recruits and promotees, we must necessarily uphold the final seniority list dated 19.02.2015, notwithstanding our reservation that, in the absence of a judicial challenge to the final seniority list dated 14.11.2009, the State Government could not have, on its own accord, revised the said final seniority list, and that it lacked jurisdiction to issue the final seniority list dated 19.02.2015.
45CONCLUSION:
93. We answer the question which the Supreme Court, in its order of remand dated 27.01.2020, had called upon us to examine, and hold that it is Rule 8(1) of the 2002 Rules which is applicable in determining inter-se seniority between direct recruits and promotees, and not Rule 6 read with Rule 8(2)(b) of the 2002 Rules. Consequently, the order of the Tribunal is set aside, and the final seniority list dated 19.02.2015, impugned before the Tribunal, is upheld. All the writ petitions are, accordingly, disposed of.
However, in the circumstances, without costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
21.07.2020 21.07.2020
NISHANT