Indian Kanoon - Search engine for Indian Law

6. The High Court vide impugned judgment and order dated 11.4.2002 held that as the postings to both set of officers i.e. those who had been promoted by the DPC dated 19.12.1998 and another DPC dated 22.1.1999 had been made on the same day and had been given notional promotion from one and the same date, their inter se seniority was to be fixed as it existed in the feeding cadre of Excise Inspectors and thus quashed the seniority list dated 12.7.2000 and further directed the State to prepare a fresh seniority list placing the appellants below the respondents. Hence these appeals.

8. Shri Rakesh Dwivedi, learned senior counsel appearing for the appellants has submitted that the action of the State Authorities has been in flagrant violation of the orders passed by this Court as promotion of the respondents to the post of AEC had been subject to the decision of the Special Leave Petition, which stood dismissed. The said respondents ought to have been reverted forthwith after dismissal of the said petition. The question of permitting them to continue even after dismissal of the petition by this Court was not required and thus, could not be justified. Promotions made by the DPC under the unamended Rules on the basis of "merit" could not be equated to the promotions made by another DPC under the amended Rules on the basis of "Seniority subject to rejection of unfit" held at a later stage. The High Court erred in considering both the promotions to have been made notionally from one and the same date. In such a fact situation, the question of interpreting the statutory rules was an unwarranted exercise. The appellants had been promoted retrospectively, given notional promotion from the date much earlier than the respondents. Therefore, direction to fix the seniority in view of their inter se seniority as it existed in the feeding cadre was not permissible. The appeals deserve to be allowed and the impugned judgment and order is liable to be set aside alongwith consequential seniority list dated 26.7.2002. The seniority list dated 12.7.2000 has to be upheld and remain intact.

21. In view of the above, the appellants are entitled for the relief purely on equitable grounds without going into any other legal issue and appeals deserve to be allowed and the seniority list quashed by the High Court has to be restored.

22. There is another aspect of the matter. The appellants and the respondents have been considered by the DPC held on 19.12.1998 to fill up 42 vacancies under the unamended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the unamended Rules on the criterion of "merit". The respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., "Seniority subject to rejection being unfit". Indisputably, these 12 officers/respondents were found unsuitable for promotion under the unamended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the appellants had been given notional promotion w.e.f. 6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the Court.

30. In view of the above, appeals succeed and are allowed. The impugned judgment and order dated 11.4.2002 is set aside. The Seniority List dated 12.7.2000 is directed to prevail and fresh Seniority List of 26.7.2002 is hereby quashed. No orders as to cost.

Before parting with these cases, we would record our appreciation to the services rendered by Shri Gaurav Agrawal, Amicus Curiae. SLP(C) No. 9615 of 2002 :

This petition could not be dismissed by the High Court at the threshold without examining the case on merit. However, no order is required in this case in view of the order of this date passed in the connected appeal nos.5790-5792/2002. It is accordingly disposed of.