REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9906 OF 2003
Pawan Pratap Singh & Ors. …… Appellants
Vs.
Reevan Singh & Ors. …… Respondents
WITH
CIVIL APPEAL NO. 9907 OF 2003
AND
CIVIL APPEAL NO. 9908 OF 2003
JUDGMENT
R.M. LODHA, J.
In this group of three appeals, by special leave, the question presented for consideration before this Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group ‘C’ post), one appointed in 1991 through the selection made by Uttar Pradesh Subordinate Services
Selection Commission (for short, ‘Selection Commission’) and the other in 1994 by Uttar Pradesh Public Service Commission (for short, ‘UPPSC’). 2. The Uttar Pradesh Jail Executive Subordinate (Non-
Gazetted) Service Rules, 1980 (for short, ‘1980 Rules’) were framed by the Governor of the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution which were published in
U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor. It reads thus : “15. Procedure for direct recruitment to the posts of Deputy Jailor, Assistant Jailor.—(1) 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. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission.(3) After the results of the written examination have been received and tabulated, the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, summon for interview such number of
candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at
the written examination and interview and recommend such number of candidates as they consider fit for
appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate
obtaining higher mark in the written examination shall be placed higher in the list. The number of names in the
list shall be larger, but not larger by more than 25 per cent of the number of vacancies. The Commission shall
forward the list to the appointing authority.” 3. Part-VI of the 1980 Rules deals with appointment,
probation, confirmation and seniority. For the purposes of these appeals, rule 22 of the 1980 Rules needs to be referred which is as follows: “22. Seniority.—Seniority in any category of posts in the service shall be determined from the date of substantive appointment and if two or more persons are appointed
together, from the order in which their names are arranged in the appointment order :
Provided that—
(1) the inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection. (2) the inter se seniority of persons appointed to the posts of Deputy Jailor by probation shall be the same as it was in the substantive post held by them at the time of promotion; and
………”
4. On December 26, 1987, the UPPSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned in the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which
included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the cadre of Deputy Jailor notified by the UPPSC in the above advertisement but
the stand of the first respondent that 114 vacancies of Deputy Jailors were notified may be assumed as fact for the purpose of these appeals. 5. The Uttar Pradesh Subordinate Services Selection (Commission) Act, 1988 (for short, ‘1988 Act’) was enacted by the U.P. Legislature to establish a Subordinate Services Selection
Commission for direct recruitment to all Group ‘C’ posts in the State of U.P. The 1988 Act came into force on February 15, 1988. 6. On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone. 7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987, the UPPSC conducted the preliminary examinations on September 24, 1989. 8. On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a
competitive examination, ‘U.P. Karapal (Deputy Jailor) Examination,
1990’ shall be held. The examination was held on due date and after
holding oral interview, the Selection Commission sent a select list to
the State Government in 1991 for issuance of appointment letters.
9. On November 23, 1991, the State Government issued
appointment letters to the candidates selected by the Selection
Commission. The present appellants in Civil Appeal No. 9906 of 2003
and Civil Appeal No. 9908 of 2003 were amongst those who were
appointed by the State Government pursuant to the selection made
by the Selection Commission.
10. In 1991, the UPPSC also conducted the main
examination for filling up different posts of Group ‘C’ including the
posts of direct recruitment of Deputy Jailor. The result thereof was
declared on July 27, 1993. The UPPSC, then, sent the select list to
the State Government. The State Government issued appointment
letters to the selected candidates on April 26, 1994. The private first
respondent was one of them.
11. The Uttar Pradesh Government Servants Seniority Rules,
1991 (for short, ‘1991 Rules’) were framed under the proviso to
Article 309 of the Constitution effective from March 20, 1991. The
1991 Rules were made applicable to all government servants in
respect of whose recruitment and conditions of service, rules may be
or have been made by the Governor under the proviso to Article 309
of the Constitution and had overriding effect to other service rules.
Rule 5 and rule 8 of the 1991 Rules which are relevant for the
purposes of these appeals read as under:
“5. Seniority where appointments by direct
recruitment only.—Where according to the service rules
appointments are to be made only by the direct
recruitment the seniority inter se of the persons
appointed on the result of any one selection, shall be
the same as it is shown in the merit list prepared by the
Commission or the Committee, as the case may be:
Provided that a candidate recruited directly may
lose his seniority, if he fails to join without valid reasons
when vacancy is offered to him, the decision of the
appointing authority as to the validity of reasons, shall
be final:
Provided further that the persons appointed on
the result of a subsequent selection shall be junior to
the persons appointed on the result of a previous
selection.
Explanation.—Where in the same year separate
selections for regular and emergency recruitment are
made, the selection for regular recruitment shall be
deemed to be the previous selection.
………….”
8. Seniority where appointments by promotion and
direct recruitment.—(1) Where according to the service
rules appointments are made both by promotion and by
direct recruitment, the seniority of persons appointed
shall, subject to the provisions of the following subrules,
be determined from the date of the order of their
substantive appointments, and if two or more persons
are appointed together, in the order in which their
names are arranged in the appointment order :
Provided that if the appointment order specifies a
particular back date, with effect from which a person is
substantively appointed, that date will be deemed to be
the date of order of substantive appointment and, in
other cases, it will mean the date of issuance of the
order:
Provided further that a candidate recruited directly may
lose his seniority if he fails to join without valid reasons,
when vacancy is offered to him the decision of the
appointing authority as to the validity of reasons, shall
be final.
(2) The seniority inter se of persons appointed on the
result of any one selection,—
(a) through direct recruitment, shall be the
same as it is shown in the merit list prepared by the
Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in
accordance with the principles laid down in Rule 6 or
Rule 7, as the case may be, according as the promotion
are to be made from a single feeding cadre or several
feeding cadres.
(3) Where appointments are made both by
promotion and direct recruitment on the result of any
one selection the seniority of promotees vis-à-vis direct
recruits shall be determined in a cyclic order (the first
being a promotee) so far as may be, in accordance with
the quota prescribed for the two sources.
Illustrations.—(1) Where the quota of promotes
and direct recruits is in the proportion of 1 : 1 the
seniority shall be in the following order :
First .. .. .. Promotee
Second .. .. .. Direct
Recruits
and so on
(2) Where the said quota is in the proportion of
1 : 3 the seniority shall be in the following order :
First .. .. .. Promotee
Second to fourth .. .. Direct
Recruits
Fifth .. .. .. Promotee
Sixth to eight .. .. Direct
recruits
and so on
Provided that :
(i) where appointment from any source are made
in excess of the prescribed quota, the persons
appointed in excess of quota shall be
pushed down, for seniority, to subsequent year
or years in which there are vacancies in
accordance with the quota;
(ii) where appointment from any source fall short
of the prescribed quota and appointment
against such unfilled vacancies are made in
subsequent year or years, the persons so
appointed shall not get seniority of any earlier
year but shall get the seniority of the year in
which their appointments are made, so
however, that their names shall be placed at
the top followed by the names, in the cyclic
order of the other appointees;
(iii) where in accordance with the service rules the
unfilled vacancies from any source could, in
the circumstances mentioned in the relevant
service rules be filled from the other source
and appointment in excess of quota are so
made, the persons so appointed shall get the
seniority of that very year as if they are
appointed against the vacancies of their
quota.”
The parties are in agreement that 1991 Rules were in existence when
the appointments were made to the posts of Deputy Jailor in 1991
and 1994.
12. On August 29, 1995, a tentative seniority list of Deputy
Jailors was notified by the Inspector General (Prisons) – the
appointing authority – and objections were called for from the
concerned officers. In that list, the candidates appointed in 1991 were
shown senior to the candidates appointed in 1994. The litigation
between the two groups started with this list. The tentative seniority
list dated August 29, 1995 came to be challenged before Allahabad
High Court in three writ petitions; one by Bholanath Mishra (Writ
Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ
Petition No. 13138/2000) and the third by the first respondent herein
Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed
by Samar Bahadur Singh was dismissed by the High Court on the
ground of availability of alternative remedy before the State Service
Tribunal. The writ petition filed by the first respondent herein was
allowed on December 2, 2002 and the High Court directed the State
of Uttar Pradesh and the Director General (Prisons), Lucknow to treat
the appointees of 1994 senior to 1991 appointees. The contention
raised by the writ petitioner (first respondent herein) before the High
Court was that in view of the second proviso to rule 5 of 1991 Rules,
the Deputy Jailors who were selected in the selection which
commenced in 1987 must be treated senior to those selected
pursuant to the selection that commenced in 1990. The Division
Bench agreed with this contention and held as follows:
“………In our opinion the correct interpretation of the
proviso to Rule 5 of the U.P. Govt. Servant Rules, 1991
is that persons like the petitioner who were selected in
the selection process which commenced in 1987 should
be treated as senior to there (sic) selected in selection
process which commenced in 1990.”
While construing the words ‘appointed on the result of a subsequent
selection’ in second proviso to rule 5 of the 1991 Rules, the High
Court held as under :
“It may be noted from the language used in the proviso
to Rule 5 that a distinction has been made between
appointment and selection. The words “appointed on
the result of a subsequent selection” clearly indicate that
for the purpose of the proviso appointment is different
from selection. Hence even if persons selected on the
basis of the selection which commenced in 1990 were
given appointment before giving appointment to the
petitioner and others similarly situate the latter will be
senior to the former because proviso to Rule 5 treats
selection different from appointment. Had that not been
so the language of the provision would have been
different?
The High Court went on to observe further as under :
“There is no dispute that the process of selection of the
petitioner and others similarly situate had begun in
1987 whereas selection in which the newly amended
(sic) respondent nos. 3 and 4 and others situated similar
to them had begun in 1990. Thus the selection process
of the petitioner and others similarly situate had begun
three years prior to the beginning of the selection of
respondent nos. 3 and 4 and others similarly situate. It
was no fault of the petitioner and others similarly situate
that their selection was prolonged far as much as six
years, whereas the selection of respondent no. 3 and 4
and others similarly situate was completed in just one
year.”
The High Court held that 1991 Rules will prevail over 1980 Rules, if
there is any conflict between the two Rules. It held :
“………In the present case the proviso to Rule 5 of the
1991 Rules makes it clear that appointment is not to be
treated as part of the selection because the words used
in the provision are “appointed on the result of a
subsequent selection”. The petitioner and others
similarly situate were appointed against the vacancy
which existed in 1987 while the selection of respondent
nos. 3 and 4 and others similarly situate by the U.P.
Subordinate Selection Commission were made against
vacancies which existed in 1990. In our opinion the
petitioner and others similarly situate should not suffer,
for no fault of theirs.”
13. Being not satisfied with the judgment of the High Court
dated December 2, 2002, three appeals, by special leave, have
been filed, one by the State of Uttar Pradesh and the other two by
1991 appointees.
14. We have heard M/s. P.N. Mishra, Vijay Hansaria and
Subodh Markandey, senior counsel for the appellants and Shri
Pramod Swaroop, senior counsel for Respondent No. 1. On behalf of
the appellants, it is urged that rule 5 of the 1991 Rules has no
application as it is applicable where the service rules provide for
appointment by direct recruitment only. Since the posts of Deputy
Jailor, as per 1980 Rules, are to be filled by direct recruitment as well
as by promotion, the mode and manner of determination of seniority
provided in rule 5 cannot be applied and instead rule 8 of the 1991
Rules would be applicable for the purposes of determination of
seniority.
15. Learned senior counsel for the appellants submitted in the
alternative that even if rule 5 of the 1991 Rules is held to be
applicable, second proviso appended to rule 5 does not contemplate
that the persons appointed pursuant to the result of a subsequent
selection (although their date of substantive appointment is earlier in
point of time) shall rank junior to the persons appointed later
because their process of selection was initiated earlier. It was
submitted that the word ‘result’ in second proviso of rule 5 of the
1991 Rules is not without significance. Our attention was drawn to
rule 4 (h) of the 1991 Rules that defines the expression ‘substantive
appointment’ and rule 9 which provides for preparation of seniority
list and it was submitted that the private appellants were substantively
appointed in 1991 in the cadre of Deputy Jailors by following the
procedure and in accordance with the 1980 Rules much before the
1994 appointees. It was argued on behalf of the appellants that the
year of vacancy against which a particular person is appointed is
wholly irrelevant for the purpose of determination of seniority and
seniority cannot relate back to the date of vacancy. In this regard,
reliance was placed upon the decisions of this Court in : (i) Jagdish
Ch. Patnaik & Ors. v. State of Orissa & Ors.1; (ii) Ajit Kumar Rath v.
State of Orissa & Ors.2; (iii) Uttaranchal Forest Rangers’ Assn.
(Direct Recruit) & Ors. v. State of U.P. & Ors.3 and (iv) State of
Uttaranchal & Anr. v. Dinesh Kumar Sharma4.
16. Learned senior counsel for the appellants also contended
that the High Court erred in invoking Article 226 of the Constitution in
the matter when the writ petition filed by Samar Bahadur Singh (Writ
Petition No. 13138/2000) was dismissed on the ground of alternative
remedy. In this regard, the Constitution Bench decision of this Court
in L. Chandra Kumar v. Union of India & Ors.5 was referred.
17. On the other hand, Mr. Pramod Swaroop, learned senior
counsel for the contesting first respondent stoutly defended the
judgment of the High Court. He argued that the High Court was
justified in relying upon second proviso to rule 5 of the 1991 Rules
and holding that the candidates appointed on the basis of result of
earlier selection process must rank senior to the candidates who
were appointed on the basis of the result of subsequent selection. He
would submit that the UPPSC started selection process for filling 114
1 (1998) 4 SCC 456
2 (1999) 9 SCC 596
3 (2006) 10 SCC 346
4 (2007) 1 SCC 683
5 (1997) 3 SCC 261
posts of Deputy Jailor in 1987; it was in this process of selection that
the contesting private respondent was selected and appointed
(although in the year 1994) and insofar as the 1991 appointees are
concerned they underwent the subsequent selection process which
started in the year 1990. Mr. Pramod Swaroop contended that 1991
Rules have the overriding effect and the seniority amongst 1991 and
1994 appointees has to be determined with reference to rule 5 of
1991 Rules. According to him, the expression ‘selection’ in second
proviso to rule 5 cannot be construed to mean only the ‘final
selection’ and since the process of selection involves several steps
which begins with the issuance of the advertisement and ends with
the preparation of select list, the expression ‘result of selection’
means the result of entire selection process. In this regard, heavy
reliance was placed by him on few decisions of this Court, namely, (i)
A.P. Public Service Commission, Hyderabad & Anr. v. B. Sarat
Chandra & Ors.6 (ii) State of U.P. v. Rafiquddin & Ors.7; (iii) Surendra
Narain Singh & Ors. v. State of Bihar & Ors.8 and (iv) Balwant Singh
Narwal & Ors. v. State of Haryana & Ors.9.
6 (1990) 2 SCC 669
7 1987 (Suppl.) SCC 401
8 (1998) 5 SCC 246
9 (2008) 7 SCC 728
18. It must be stated immediately that the recruitment to the
posts of Deputy Jailor in the State of Uttar Pradesh is governed by
the 1980 Rules which have been framed by the Governor in exercise
of the powers conferred by the proviso to Article 309 of the
Constitution. 1980 Rules provide for cadre of service, procedure for
recruitment to the post of Deputy Jailor, reservation, academic
qualifications, determination of vacancies, appointment, probation,
confirmation and inter se seniority of persons appointed to the
service. However, by subsequent Rules, namely, 1991 Rules which
too were made by the Governor under the proviso to Article 309 of
the Constitution, comprehensive provisions have been made for the
determination of seniority of all government servants in the State of
Uttar Pradesh. Rule 2 of the 1991 Rules says 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
Governor under the proviso to Article 309 of the Constitution and rule
3 gives to the 1991 Rules overriding effect notwithstanding anything
to the contrary contained in earlier service rules. In this view of the
matter, inter se seniority amongst 1991 and 1994 appointees by
direct recruitment has to be determined under the 1991 Rules and
rule 22 of the 1980 Rules has to give way to the 1991 Rules.
19. Now, insofar as 1991 Rules are concerned, the said
Rules provide for determination of seniority in relation to different
categories. Rule 5 makes provision for determination of seniority in
cases where according to service rules, appointments are made only
by the direct recruitment. It would be seen that 1980 Rules are the
relevant service rules for appointment to the posts of Deputy Jailor.
As per rule 5 of the 1980 Rules, there are two sources of recruitment
to the post of Deputy Jailor; one, by direct recruitment and the other,
by promotion from amongst the permanent Assistant Jailors in ratio of
50% each. The word ‘only’ in rule 5 of the 1991 Rules is of
significance and it becomes clear therefrom that rule 5 of the 1991
Rules has no application at all for determination of inter se seniority of
the 1991 and 1994 appointees because 1980 Rules provide for
appointment to the posts of Deputy Jailor by direct recruitment as well
as by promotion. It is only where service rules in the State of U.P.
provide for appointments by direct recruitment alone that rule 5 of
1991 Rules comes into play for determination of seniority and not
otherwise. The reliance placed by the High Court upon second
proviso to rule 5 of the 1991 Rules for determination of inter se
seniority amongst 1991 and 1994 appointees is, thus, misplaced.
The High Court fell into grave error in not appreciating that rule 5 of
the 1991 Rules operates where service rules provide for
appointments by direct recruitment only. Rule 6 and rule 7 of the
1991 Rules also have no application as these rules provide for
determination of seniority where appointments are made by
promotion only from a single feeding cadre or only from several
feeding cadres. These appeals are not concerned with the
determination of inter se seniority between the promotees. Rule 8 of
the 1991 Rules makes a provision for determination of seniority
where according to service rules appointments are made both by
promotion and by direct recruitment. The marginal note of rule 8
‘seniority where appointments by promotion and direct recruitment’
and the body of sub-rule (1) of rule 8 that provides, ‘where according
to the service rules appointments are made both by promotion and by
direct recruitment’, leave no manner of doubt that rule 8 of the 1991
Rules would govern the controversy in the present case since 1980
Rules clearly provide for appointments to the posts of Deputy Jailor
by two sources i.e., by direct recruitment as well as by promotion. It is
true that the controversy in hand relates to determination of seniority
between two groups of direct recruits to the posts of Deputy Jailor,
one appointed in 1991 through the selection made by the Selection
Commission and the other in 1994 by the UPPSC and the
controversy does not relate to determination of inter se seniority
between direct recruitees and the promotees, but that does not take
away the applicability of rule 8 of the 1991 Rules. It is so because in
the 1991 Rules, the basis of categorization for the purpose of
determination of seniority is the method and manner for appointments
in the service rules. It is in this view of the matter that rule 5, rule 6,
rule 7 and rule 8 of the 1991 Rules provide for determination of
seniority amongst different categories of appointments made under
the service rules. Once it is held that rule 8 is applicable for
determination of inter se seniority amongst 1991 and 1994 recruitees
to the posts of Deputy Jailor, it is clear that their seniority has to be
determined on the basis of their substantive appointments. Insofar as
the present controversy is concerned, none of the provisos to sub-rule
(1) is attracted since the appointment orders of 1994 appointees do not
specify the back date nor these appeals are concerned with a situation
where 1991 appointees failed to join on time. These appeals are also
not concerned with seniority inter se of persons appointed on the
result of one selection through direct recruitment or through direct
recruitment and promotion in one selection and, therefore, provisions
of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1)
of rule 8 in unambiguous terms states that the seniority of persons,
subject to the provisions of the sub-rules (2) and (3), shall be
determined from the date of the order of their substantive
appointments. Rule 4(h) defines ‘substantive appointment’ as an
appointment, not being an ad-hoc appointment, on a post in the cadre
of service, made after selection in accordance with the service rules
relating to that service. It, thus, becomes abundantly clear that for
determination of inter se seniority between the two rival groups (1991
and 1994 appointees by direct recruitment) what is relevant is the
date of the order of their substantive appointment and since the
substantive appointment of 1991 appointees is much prior in point of
time, they must rank senior to the 1994 appointees.
20. It is now appropriate to consider the authorities cited at
the Bar and a couple of other decisions. In Rafiquddin7, this Court in
the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made
general observations that seniority in the service is determined on the
basis of the year of the competitive examination irrespective of the
date of appointment and inter se seniority of candidates recruited to
the service is determined on the basis of their ranking in the merit list.
21. In A.P. Public Service Commission6, this Court was
concerned with the Andhra Pradesh Police Service Rules, 1966.
While dealing with the word ‘selection’ in rule 5(A)(i) of the said
Rules, this Court observed as follows :
“If the word ‘selection’ is understood in a sense meaning
thereby only the final act of selecting candidates with
preparation of the list for appointment, then the
conclusion of the Tribunal may not be unjustified. But
round phrases cannot give square answers. Before
accepting that meaning, we must see the
consequences, anomalies and uncertainties that it may
lead to. The Tribunal in fact does not dispute that the
process of selection begins with the issuance of
advertisement and ends with the preparation of select
list for appointment. Indeed, it consists of various steps
like inviting applications, scrutiny of applications,
rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling
for interview or viva voce and preparation of list of
successful candidates for appointment. Rule 3 of the
Rules of Procedure of the Public Service Commission is
also indicative of all these steps. When such are the
different steps in the process of selection, the minimum
or maximum age for suitability of a candidate for
appointment cannot be allowed to depend upon any
fluctuating or uncertain date. If the final stage of
selection is delayed and more often it happens for
various reasons, the candidates who are eligible on the
date of application may find themselves eliminated at
the final stage for no fault of theirs. The date to attain
the minimum or maximum age must, therefore, be
specific, and determinate as on a particular date for
candidates to apply and for recruiting agency to
scrutinise applications. It would be, therefore,
unreasonable to construe the word selection only as the
factum of preparation of the select list. Nothing so bad
would have been intended by the rule making authority.”
Pertinently, the aforesaid observations of this Court with regard to the
word ‘selection’ are in the context of the age eligibility as the provision
under consideration read, ‘has completed the age of 21 years and
had not completed the age of 26 years on the first day of July of the
year in which the selection is made’. The aforesaid observations,
therefore, have to be read in the context of the provision under
consideration before this Court.
22. In Ram Janam Singh v. State of U.P. and Anr.10 , this
Court reiterated that the date of entry into a service is the safest rule
to follow while determining the inter se seniority between one officer
or the other or between one group of officers and the other recruited
from the different sources. It was observed that this is consistent with
the requirement of Articles 14 and 16 of the Constitution. It was,
however, observed that if the circumstances so require, a group of
persons can be treated a class separate from the rest for any
preferential or beneficial treatment while fixing their seniority, but,
normally such classification should be by statutory rule or rules
framed under Article 309.
23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik1,
while construing the word ‘recruited’ occurring in Orissa Service of
10 (1994) 2 SCC 622
Engineers Rules, 1941, held that a direct recruit is recruited when
formal appointment order is issued and not when recruitment process
is initiated. This is what this Court said :
“34. The only other contention which requires
consideration is the one raised by Mr Raju
Ramachandran, learned Senior Counsel appearing for
the intervenors, to the effect that the expressions
“recruitment” and “appointment” have two different
concepts in the service jurisprudence and, therefore,
when Rule 26 uses the expression “recruited” it must be
a stage earlier to the issuance of appointment letter and
logically should mean when the selection process
started and that appears to be the intendment of the
rule-makers in Rule 26. We are, however, not
persuaded to accept this contention since under the
scheme of Rules a person can be said to be recruited
into service only on being appointed to the rank of
Assistant Engineer, as would appear from Rule 5 and
Rule 6. Then again in case of direct recruits though the
process of recruitment starts when the Public Service
Commission invites applications under Rule 10 but until
and unless the Government makes the final selection
under Rule 15 and issues appropriate orders after the
selected candidates are examined by the Medical
Board, it cannot be said that a person has been
recruited to the service. That being the position it is
difficult for us to hold that in the seniority rule the
expression “recruited” should be interpreted to mean
when the selection process really started. That apart the
said expression “recruited” applies not only to the direct
recruits but also to the promotees. In case of direct
recruits the process of recruitment starts with the
invitation of application by the Commission and in case
of promotees it starts with the nomination made by the
Chief Engineer under Rule 16. But both in the case of
direct recruits as well as in the case of promotees the
final selection vests with the State Government under
Rules 15 and 18 respectively and until such final
selection is made and appropriate orders passed
thereon no person can be said to have been recruited to
the service. In this view of the matter the only
appropriate and logical construction that can be made of
Rule 26 is the date of the order under which the persons
are appointed to the post of Assistant Engineer, is the
crucial date for determination of seniority under the said
Rule………”
24. While dealing with the dispute relating to inter se seniority
of Munsifs—one set of Munsif recruited on the basis of 15th
examination held by the Public Service Commission under the Bihar
Judicial Service (Recruitment) Rules, 1955 and another set of
Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad
hoc Recruitment Rules, 1974, in Surendra Narain Singh8, this Court
held that candidates recruited against earlier vacancies shall rank
senior to those recruited against the later vacancies.
25. In Ajit Kumar Rath2, this Court followed Jagdish Ch.
Patnaik1 and did not accept the contention that those who were
appointed against the vacancies of the earlier years although,
appointed later in point of time, must rank senior to the appointees of
the vacancies of the subsequent years though appointed in prior point
of time.
26. This Court emphasized in the case of Uttaranchal Forest
Rangers’ Association3 that no retrospective promotion can be
granted nor any seniority can be given on retrospective basis from a
date when an employee has not even born in the cadre. In this
regard, the Court relied upon earlier decisions of this Court in State
of Bihar & Ors. v. Akhouri Sachindra Nath & Ors.11 and Jagdish Ch.
Patnaik1.
27. In the case of Dinesh Kumar Sharma4, this Court was
concerned with U.P. Agriculture Group ‘B’ Service Rules, 1995 and
the 1991 Rules. With reference to rule 8 of the 1991 Rules, this
Court held that seniority cannot be reckoned from the date of
occurrence of the vacancy and should be reckoned only from the
date of substantive appointment to the vacant post under the Rules
and not retrospectively from the date of occurrence of vacancy.
28. The dispute in Balwant Singh Narwal9 related to seniority
of the Principals, some of whom were appointed between 1995 and
2000 and others on May 26, 2000. The Principals who were
appointed on May 26, 2000 were given seniority with retrospective
effect from June 2, 1994. This Court while relying upon a decision in
Surendra Narain Singh8 held as under :
11 (1991 (suppl.) 1 SCC 334
“9. There is no dispute about these general principles.
But the question here is in regard to seniority of
Respondents 4 to 16 selected on 1-10-1993 against
certain vacancies of 1992-1993 who were not appointed
due to litigation, and those who were selected against
subsequent vacancies. All others from the same merit
list declared on 1-10-1993 were appointed on 2-6-1994.
Considering a similar situation, this Court, in Surendra
Narain Singh v. State of Bihar held that candidates who
were selected against earlier vacancies but who could
not be appointed along with others of the same batch
due to certain technical difficulties, when appointed
subsequently, will have to be placed above those who
were appointed against subsequent vacancies.”
29. The Constitution Bench of this Court in Direct Recruit
Class II Engineering Officers’ Association v. State of Maharashtra &
Ors.12 stated the legal position with regard to inter se seniority of
direct recruits and promotees and while doing so, inter alia, it was
stated that once an incumbent is appointed to a post according to
rules, his seniority has to be counted from the date of his appointment
and not according to the date of his confirmation.
30. From the above, the legal position with regard to
determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the
context of the service rules under which the appointment is made. It
may mean the date on which the process of selection starts with the
12 (1990) 2 SCC 715
issuance of advertisement or the factum of preparation of the select
list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as
per the service rules. The date of entry in a particular service or the
date of substantive appointment is the safest criterion for fixing
seniority inter se between one officer or the other or between one
group of officers and the other recruited from the different sources.
Any departure therefrom in the statutory rules, executive instructions
or otherwise must be consistent with the requirements of Articles 14
and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back
date and if it is done, it must be based on objective considerations
and on a valid classification and must be traceable to the statutory
rules.
(iv) The seniority cannot be reckoned from the date of occurrence
of the vacancy and cannot be given retrospectively unless it is so
expressly provided by the relevant service rules. It is so because
seniority cannot be given on retrospective basis when an employee
has not even born in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the mean
time.
31. In light of the legal position summed up above and rule 8
of the 1991 Rules, it is plain that 1991 appointees who were selected
and appointed in accordance with the service rules cannot be made
junior to 1994 appointees even if it is assumed that the selection and
appointment of 1994 appointees was for earlier vacancies. The 1991
appointees having been appointed substantively much prior in point
of time, they are entitled to rank senior to 1994 appointees. As
already noticed above, rule 5 of the 1991 Rules has no application for
determination of inter se seniority of the Deputy Jailors appointed by
direct recruitment in 1991 and 1994. The consideration of the matter
by the High Court is apparently flawed and cannot be sustained. In
the present fact situation, it must be held that 1994 appointees cannot
legitimately claim their seniority over 1991 appointees.
32. In view of the above, it is not necessary to deal with the
objection raised by the appellants about maintainability of writ petition
filed by contesting private respondent directly before the High Court
bypassing the remedy before the State Service Tribunal.
33. For the foregoing reasons, these appeals are allowed; the
judgment and order dated December 2, 2002 passed by the
Allahabad High Court is set aside. The seniority of the two groups of
direct recruits to the posts of Deputy Jailor, one appointed through
the selection made by the Uttar Pradesh Subordinate Services
Selection Commission in 1991 and the other by Uttar Pradesh Public
Service Commission in 1994 shall be now determined as indicated
above, if not determined in the manner stated above, so far. The
parties shall bear their own costs.
….….……………. J.
(R.M. Lodha)
NEW DELHI,
FEBRUARY 10, 2011.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9906 OF 2003
PAWAN PRATAP SINGH & ORS. … APPELLANTS
VERSUS
REEVAN SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.9907 OF 2003
AND
CIVIL APPEAL NO.9908 OF 2003
J U D G M E N T
Aftab Alam, J.
I have had the benefit of going through the judgment prepared by my
brother Lodha J. The judgment deals with all the relevant facts and the
statutory provisions and by application of rule 8 of the Uttar Pradesh
Government Servants Seniority Rules, 1991 (the 1991 Rules) concludes that
the appellants who were appointed as Deputy Jailers in 1993 (on the basis of
the selection process that commenced on October 27, 1990) would rank
senior to the first respondent who was appointed in 1994, even though in his
case the selection process had commenced much earlier on December 26,
1987. I too reach the same conclusion but by a different way and for slightly
different reasons.
The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service
Rules, 1980 (the 1980 Rules) under which the appellants and the first
respondent were appointed as Deputy Jailers had, in rule 22, the provision
for determination of seniority in any category of posts in the service. But
rule 22 of the 1980 Rules was superseded by the 1991 Rules framed under
Article 309 of the Constitution and coming into force with effect from
March 20, 1991. The 1991 Rules were made applicable to all government
servants whose recruitments were governed by rules framed under Article
309 of the Constitution and were given overriding effect over all other
service rules. Both the appellants and respondent no. 1 were appointed after
the 1991 Rules came into force. Hence, both sides agreed that the question
of their inter se seniority can be determined only under the provisions of the
1991 Rules.
The High Court on application of the (second) proviso to rule 5 of the
1991 Rules held that respondent no.1 would rank senior to the appellants,
observing that the candidates who were selected in the selection process that
commenced in 1987 should rank senior to those selected in the selection
process commencing much later in 1990. By a process of semantic
reasoning, the High Court tried to make a distinction between ‘selection’ and
‘appointment’ and held that under the proviso to rule 5 what was
determinative was not appointment but selection. Proceeding on that basis
the High Court held that though the appellants were appointed earlier (in
1991) than respondent no.1 who was appointed later (in 1994), nevertheless
they would rank junior to him because they were appointed “on the result of
a subsequent selection”.
I am completely unable to see how the facts of this case can be
squeezed to fit into the proviso to rule 5 of the 1991 Rules. An indication of
the kind of cases to which the proviso would apply is given in the
explanation to it. Further, in service law it is not unknown (especially in
cases where recruitments are made regularly and the selection process is not
inordinately prolonged) that even while a select list is alive and it is yet to be
completely exhausted another select list on the basis of the next selection
comes into being and appointments are made from that list. In such a
situation certain vacancies relatable to the previous selection may still be
filled up from the waiting list/unexhausted previous list and in those cases
even though the appointment might take place later, by virtue of the proviso
in question, the candidate from the previous list would rank senior to the
candidate appointed from the third list. To my mind, the proviso relied upon
by the High Court has no application to the facts of this case where the two
appointments, based on selections made by two different agencies, are
separated by a gap of two and a half years.
In my brother’s judgment, rule 5 is discarded in preference to rule 8 of
the 1991 Rules because the post of Deputy Jailer is open to two modes of
recruitment, one direct and the other by promotion from amongst the
permanent Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed out
that rule 5 of the 1991 Rules begins by expressly stating, “Where according
to the service rules appointments are to be made only by the direct
recruitment….” On the other hand rule 8 begins by saying, “Where
according to the service rules appointments are made both by promotion and
by direct recruitment….” And under rule 8, seniority is to be determined on
the basis of the date of the order of the substantive appointment. Applying
the date of substantive appointment as the basis to determine seniority the
appellants would indeed rank senior to respondent no.1.
With full respect, however, I am unable to persuade myself in regard
to the application of rule 8 of the 1991 Rules to the facts of the case. The
facts of the case are extraordinary and they seem to me, to fall completely
outside the provisions of the 1991 Rules. An attempt to fit those facts into
any of the provisions of the 1991 Rules would, to my mind, amount to doing
violence to the rules. The 1991 Rules were not made exclusively for the Jail
Executive Subordinate Service (to which the post of Deputy Jailer belongs)
but those rules apply to all government servants for whose recruitments rules
are framed under the proviso to Article 309 of the Constitution. In making
rules of general application it is not possible to take into account a situation
that is way out of the normal.
In the main judgment, the facts of the case are taken note of in detail
but it would be useful to briefly recapitulate them here. Before November
25, 1989, the statutory agency to make the selection for appointment to the
post of Deputy Jailer was the Uttar Pradesh Public Service Commission
(hereinafter “UPPSC”). On December 26, 1987 the UPPSC issued an
advertisement for filling up a large number of vacancies in different posts,
including 144 vacancies in the post of Deputy Jailers. It held the main
examination of the candidates applying in response to the advertisement in
1991 and finally declared the result on July 27, 1993. On the basis of the list
received from the UPPSC, the State Government issued appointment letters
to the selected candidates (one of them being respondent no. 1) on April, 26
1994. In short, the selection process started by the UPPSC was completed
and materialized in appointments of the selected candidates in seven years.
In the meanwhile, it seems, the State Legislature, having regard to the long
delays in the completion of selection by the UPPSC, decided to lighten its
burden by taking away from it the recruitments on all group ‘C’ posts in the
State. The State Legislature, accordingly, passed the Uttar Pradesh
Subordinate Services Selection (Commission), Act, 1988 to establish a
Subordinate Services Selection Commission for direct recruitment to all
group ‘C’ posts in the State. The Act came into force with effect from
February 15, 1988. After coming into force of this Act, a notification had to
be issued by the Governor on November 25, 1989, clarifying that the
vacancies for which requisition had earlier been made to the UPPSC would
be filled up on the recommendation of the UPPSC alone and that is how the
UPPSC continued to have seisin over the vacancies advertised by it on
December 26, 1987. The newly formed Selection Commission issued an
advertisement on October 27, 1990, for filling up 60 posts of Deputy Jailer.
It completed the selection process and sent the select list to the State
Government in 1991 and on that basis the appellants were appointed vide
appointment letter dated November 23, 1991 issued by the State
Government. At this stage, it is important to note that in terms of the
advertisement issued by the Selection Commission on October 27, 1990,
there was nothing to prevent those (including respondent no.1) who might
have applied in response to the earlier advertisement by the UPPSC to also
apply for the 60 vacancies under the later advertisement by the Selection
Commission. When this aspect of the matter was pointed out, it was stated
on behalf of the respondents that by the time the later advertisement by the
Selection Commission was issued on October 27, 1990 some of the
applicants before the UPPSC had become overage and were no longer
eligible to apply. There are no details available as to how many of the 144
candidates appointed from the select list of the UPPSC had become overage
by the time the advertisement of the Selection Commission came on October
27, 1990; even in the case of respondent no. 1 it is not stated clearly and
definitely that he was unable to apply in response to the advertisement of
October 27, 1990, issued by the Selection Commission because by that time
he had become over age. Be that as it may, this aspect of the matter is only
incidental and it is recalled simply to point out that it is not open to the
respondents to contend that the position in which they are placed is the result
of circumstances over which they had no control and to make an appeal in
the name of equity.
The purpose in recapitulating the facts of the case is to show that the
situation arising from the two sets of appointments and the resultant dispute
of seniority is highly anomalous. It should be accepted as such instead of
trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules
were not designed to resolve a dispute of seniority arising from such facts. If
I put on the cap of the rule maker I cannot imagine myself conceiving of a
fact situation of this kind and making a provision to meet the contingency.
Now, in case the seniority between the appellants and the first
respondent is to be determined outside the 1991 Rules, one has to go to the
basic principles for determination of seniority. One cardinal principle for
determination of seniority is that unless provided for in the rules, seniority
can not relate back to a period prior to the date of the incumbent’s birth in
the service/cadre.
As a matter of fact this principle is fully dealt with in the main
judgment in which reference is made to the decisions of this Court in Ram
Janam Singh v. State of UP, (1994) 2 SCC 622; Uttaranchal Forest
Rangers’ Association (Direct Recruit) & Ors. v. State of UP & Ors., (2006)
10 SCC 346; State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors., 1991
Supp (1) SCC 334 and the principle is summarized in sub-paragraphs (2) &
(4) of paragraph 30 of the judgment.
To the decisions referred to on this point in the main judgment I may
add just one more in Suraj Parkash Gupta v. State of J & K, (2000) 7 SCC
561. The decision relates to a dispute of seniority between direct recruits and
promotees but in that case the Court considered the question of ante-dating
the date of recruitment on the ground that the vacancy against which the
appointment was made had arisen long ago. In paragraph 18 of the decision
(at page 578 of the SCC) the Court framed one of the points arising for
consideration in the case as follows:
“(4) Whether the direct recruits could claim a retrospective date
of recruitment from the date on which the post in direct
recruitment was available, even though the direct recruit was
not appointed by that date and was appointed long thereafter? ”
This Court answered the question in the following terms:
“Point 4:
Direct recruits cannot claim appointment from date of vacancy
in quota before their selection
We have next to refer to one other contention raised by the
respondent-direct recruits. They claimed that the direct
recruitment appointment can be ante-dated from the date of
occurrence of a vacancy in the direct recruitment quota, even if
on that date the said person was not directly recruited. It was
submitted that if the promotees occupied the quota belonging to
direct recruits they had to be pushed down, whenever direct
recruitment was made. Once they were so pushed down, even if
the direct recruit came later, he should be put in the direct
recruit slot from the date on which such a slot was available
under the direct recruitment quota.
This contention, in our view, cannot be accepted. The reason as
to why this argument is wrong is that in service jurisprudence, a
direct recruit can claim seniority only from the date of his
regular appointment. He cannot claim seniority from a date
when he was not borne in the service. This principle is well
settled. In N.K.Chauhan v. State of Gujarat, Krishna Iyer, J.
stated:
Later direct recruit cannot claim deemed dates of appointment
for seniority with effect from the time when direct recruitment
vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India, it was held that a
later direct recruit cannot claim seniority from a date before his
birth in the service or when he was in school or college.
Similarly it was pointed out in A.N. Pathak v. Secretary to the
Government that slots cannot be kept reserved for the direct
recruits for retrospective appointments.”
In conclusion I would say that in the facts of this case the issue of
seniority between the appellants and respondent no. 1 must be decided on
the basis of the aforesaid principle and there is no need to refer to rule 8 of
the 1991 Rules. By this way I also hold that respondent no.1 cannot claim
seniority over the appellants and the appellants would rank senior to
respondent no.1.
In the result, the appeals are allowed. The judgment of the High Court
is set aside and the writ petition filed by respondent no. 1 in the High Court
is directed to be dismissed.
There shall be no order as to costs.
………………………..J.
(Aftab Alam)
New Delhi;
February 10, 2011.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9906 OF 2003
PAWAN PRATAP SINGH & ORS. … APPELLANTS
VERSUS
REEVAN SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.9907 OF 2003
AND
CIVIL APPEAL NO.9908 OF 2003
O R D E R
In view of the two separate judgments (which are concurrent in
nature) pronounced by us in these appeals today, the appeals are allowed.
There shall be no order as to costs.
………………………J.
(Aftab Alam)
………………………J.
(R.M. Lodha)
New Delhi;
February 10, 2011
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9906 OF 2003
Pawan Pratap Singh & Ors. …… Appellants
Vs.
Reevan Singh & Ors. …… Respondents
WITH
CIVIL APPEAL NO. 9907 OF 2003
AND
CIVIL APPEAL NO. 9908 OF 2003
JUDGMENT
R.M. LODHA, J.
In this group of three appeals, by special leave, the question presented for consideration before this Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group ‘C’ post), one appointed in 1991 through the selection made by Uttar Pradesh Subordinate Services
Selection Commission (for short, ‘Selection Commission’) and the other in 1994 by Uttar Pradesh Public Service Commission (for short, ‘UPPSC’). 2. The Uttar Pradesh Jail Executive Subordinate (Non-
Gazetted) Service Rules, 1980 (for short, ‘1980 Rules’) were framed by the Governor of the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution which were published in
U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor. It reads thus : “15. Procedure for direct recruitment to the posts of Deputy Jailor, Assistant Jailor.—(1) 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. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission.(3) After the results of the written examination have been received and tabulated, the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, summon for interview such number of
candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at
the written examination and interview and recommend such number of candidates as they consider fit for
appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate
obtaining higher mark in the written examination shall be placed higher in the list. The number of names in the
list shall be larger, but not larger by more than 25 per cent of the number of vacancies. The Commission shall
forward the list to the appointing authority.” 3. Part-VI of the 1980 Rules deals with appointment,
probation, confirmation and seniority. For the purposes of these appeals, rule 22 of the 1980 Rules needs to be referred which is as follows: “22. Seniority.—Seniority in any category of posts in the service shall be determined from the date of substantive appointment and if two or more persons are appointed
together, from the order in which their names are arranged in the appointment order :
Provided that—
(1) the inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection. (2) the inter se seniority of persons appointed to the posts of Deputy Jailor by probation shall be the same as it was in the substantive post held by them at the time of promotion; and
………”
4. On December 26, 1987, the UPPSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned in the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which
included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the cadre of Deputy Jailor notified by the UPPSC in the above advertisement but
the stand of the first respondent that 114 vacancies of Deputy Jailors were notified may be assumed as fact for the purpose of these appeals. 5. The Uttar Pradesh Subordinate Services Selection (Commission) Act, 1988 (for short, ‘1988 Act’) was enacted by the U.P. Legislature to establish a Subordinate Services Selection
Commission for direct recruitment to all Group ‘C’ posts in the State of U.P. The 1988 Act came into force on February 15, 1988. 6. On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone. 7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987, the UPPSC conducted the preliminary examinations on September 24, 1989. 8. On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a
competitive examination, ‘U.P. Karapal (Deputy Jailor) Examination,
1990’ shall be held. The examination was held on due date and after
holding oral interview, the Selection Commission sent a select list to
the State Government in 1991 for issuance of appointment letters.
9. On November 23, 1991, the State Government issued
appointment letters to the candidates selected by the Selection
Commission. The present appellants in Civil Appeal No. 9906 of 2003
and Civil Appeal No. 9908 of 2003 were amongst those who were
appointed by the State Government pursuant to the selection made
by the Selection Commission.
10. In 1991, the UPPSC also conducted the main
examination for filling up different posts of Group ‘C’ including the
posts of direct recruitment of Deputy Jailor. The result thereof was
declared on July 27, 1993. The UPPSC, then, sent the select list to
the State Government. The State Government issued appointment
letters to the selected candidates on April 26, 1994. The private first
respondent was one of them.
11. The Uttar Pradesh Government Servants Seniority Rules,
1991 (for short, ‘1991 Rules’) were framed under the proviso to
Article 309 of the Constitution effective from March 20, 1991. The
1991 Rules were made applicable to all government servants in
respect of whose recruitment and conditions of service, rules may be
or have been made by the Governor under the proviso to Article 309
of the Constitution and had overriding effect to other service rules.
Rule 5 and rule 8 of the 1991 Rules which are relevant for the
purposes of these appeals read as under:
“5. Seniority where appointments by direct
recruitment only.—Where according to the service rules
appointments are to be made only by the direct
recruitment the seniority inter se of the persons
appointed on the result of any one selection, shall be
the same as it is shown in the merit list prepared by the
Commission or the Committee, as the case may be:
Provided that a candidate recruited directly may
lose his seniority, if he fails to join without valid reasons
when vacancy is offered to him, the decision of the
appointing authority as to the validity of reasons, shall
be final:
Provided further that the persons appointed on
the result of a subsequent selection shall be junior to
the persons appointed on the result of a previous
selection.
Explanation.—Where in the same year separate
selections for regular and emergency recruitment are
made, the selection for regular recruitment shall be
deemed to be the previous selection.
………….”
8. Seniority where appointments by promotion and
direct recruitment.—(1) Where according to the service
rules appointments are made both by promotion and by
direct recruitment, the seniority of persons appointed
shall, subject to the provisions of the following subrules,
be determined from the date of the order of their
substantive appointments, and if two or more persons
are appointed together, in the order in which their
names are arranged in the appointment order :
Provided that if the appointment order specifies a
particular back date, with effect from which a person is
substantively appointed, that date will be deemed to be
the date of order of substantive appointment and, in
other cases, it will mean the date of issuance of the
order:
Provided further that a candidate recruited directly may
lose his seniority if he fails to join without valid reasons,
when vacancy is offered to him the decision of the
appointing authority as to the validity of reasons, shall
be final.
(2) The seniority inter se of persons appointed on the
result of any one selection,—
(a) through direct recruitment, shall be the
same as it is shown in the merit list prepared by the
Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in
accordance with the principles laid down in Rule 6 or
Rule 7, as the case may be, according as the promotion
are to be made from a single feeding cadre or several
feeding cadres.
(3) Where appointments are made both by
promotion and direct recruitment on the result of any
one selection the seniority of promotees vis-à-vis direct
recruits shall be determined in a cyclic order (the first
being a promotee) so far as may be, in accordance with
the quota prescribed for the two sources.
Illustrations.—(1) Where the quota of promotes
and direct recruits is in the proportion of 1 : 1 the
seniority shall be in the following order :
First .. .. .. Promotee
Second .. .. .. Direct
Recruits
and so on
(2) Where the said quota is in the proportion of
1 : 3 the seniority shall be in the following order :
First .. .. .. Promotee
Second to fourth .. .. Direct
Recruits
Fifth .. .. .. Promotee
Sixth to eight .. .. Direct
recruits
and so on
Provided that :
(i) where appointment from any source are made
in excess of the prescribed quota, the persons
appointed in excess of quota shall be
pushed down, for seniority, to subsequent year
or years in which there are vacancies in
accordance with the quota;
(ii) where appointment from any source fall short
of the prescribed quota and appointment
against such unfilled vacancies are made in
subsequent year or years, the persons so
appointed shall not get seniority of any earlier
year but shall get the seniority of the year in
which their appointments are made, so
however, that their names shall be placed at
the top followed by the names, in the cyclic
order of the other appointees;
(iii) where in accordance with the service rules the
unfilled vacancies from any source could, in
the circumstances mentioned in the relevant
service rules be filled from the other source
and appointment in excess of quota are so
made, the persons so appointed shall get the
seniority of that very year as if they are
appointed against the vacancies of their
quota.”
The parties are in agreement that 1991 Rules were in existence when
the appointments were made to the posts of Deputy Jailor in 1991
and 1994.
12. On August 29, 1995, a tentative seniority list of Deputy
Jailors was notified by the Inspector General (Prisons) – the
appointing authority – and objections were called for from the
concerned officers. In that list, the candidates appointed in 1991 were
shown senior to the candidates appointed in 1994. The litigation
between the two groups started with this list. The tentative seniority
list dated August 29, 1995 came to be challenged before Allahabad
High Court in three writ petitions; one by Bholanath Mishra (Writ
Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ
Petition No. 13138/2000) and the third by the first respondent herein
Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed
by Samar Bahadur Singh was dismissed by the High Court on the
ground of availability of alternative remedy before the State Service
Tribunal. The writ petition filed by the first respondent herein was
allowed on December 2, 2002 and the High Court directed the State
of Uttar Pradesh and the Director General (Prisons), Lucknow to treat
the appointees of 1994 senior to 1991 appointees. The contention
raised by the writ petitioner (first respondent herein) before the High
Court was that in view of the second proviso to rule 5 of 1991 Rules,
the Deputy Jailors who were selected in the selection which
commenced in 1987 must be treated senior to those selected
pursuant to the selection that commenced in 1990. The Division
Bench agreed with this contention and held as follows:
“………In our opinion the correct interpretation of the
proviso to Rule 5 of the U.P. Govt. Servant Rules, 1991
is that persons like the petitioner who were selected in
the selection process which commenced in 1987 should
be treated as senior to there (sic) selected in selection
process which commenced in 1990.”
While construing the words ‘appointed on the result of a subsequent
selection’ in second proviso to rule 5 of the 1991 Rules, the High
Court held as under :
“It may be noted from the language used in the proviso
to Rule 5 that a distinction has been made between
appointment and selection. The words “appointed on
the result of a subsequent selection” clearly indicate that
for the purpose of the proviso appointment is different
from selection. Hence even if persons selected on the
basis of the selection which commenced in 1990 were
given appointment before giving appointment to the
petitioner and others similarly situate the latter will be
senior to the former because proviso to Rule 5 treats
selection different from appointment. Had that not been
so the language of the provision would have been
different?
The High Court went on to observe further as under :
“There is no dispute that the process of selection of the
petitioner and others similarly situate had begun in
1987 whereas selection in which the newly amended
(sic) respondent nos. 3 and 4 and others situated similar
to them had begun in 1990. Thus the selection process
of the petitioner and others similarly situate had begun
three years prior to the beginning of the selection of
respondent nos. 3 and 4 and others similarly situate. It
was no fault of the petitioner and others similarly situate
that their selection was prolonged far as much as six
years, whereas the selection of respondent no. 3 and 4
and others similarly situate was completed in just one
year.”
The High Court held that 1991 Rules will prevail over 1980 Rules, if
there is any conflict between the two Rules. It held :
“………In the present case the proviso to Rule 5 of the
1991 Rules makes it clear that appointment is not to be
treated as part of the selection because the words used
in the provision are “appointed on the result of a
subsequent selection”. The petitioner and others
similarly situate were appointed against the vacancy
which existed in 1987 while the selection of respondent
nos. 3 and 4 and others similarly situate by the U.P.
Subordinate Selection Commission were made against
vacancies which existed in 1990. In our opinion the
petitioner and others similarly situate should not suffer,
for no fault of theirs.”
13. Being not satisfied with the judgment of the High Court
dated December 2, 2002, three appeals, by special leave, have
been filed, one by the State of Uttar Pradesh and the other two by
1991 appointees.
14. We have heard M/s. P.N. Mishra, Vijay Hansaria and
Subodh Markandey, senior counsel for the appellants and Shri
Pramod Swaroop, senior counsel for Respondent No. 1. On behalf of
the appellants, it is urged that rule 5 of the 1991 Rules has no
application as it is applicable where the service rules provide for
appointment by direct recruitment only. Since the posts of Deputy
Jailor, as per 1980 Rules, are to be filled by direct recruitment as well
as by promotion, the mode and manner of determination of seniority
provided in rule 5 cannot be applied and instead rule 8 of the 1991
Rules would be applicable for the purposes of determination of
seniority.
15. Learned senior counsel for the appellants submitted in the
alternative that even if rule 5 of the 1991 Rules is held to be
applicable, second proviso appended to rule 5 does not contemplate
that the persons appointed pursuant to the result of a subsequent
selection (although their date of substantive appointment is earlier in
point of time) shall rank junior to the persons appointed later
because their process of selection was initiated earlier. It was
submitted that the word ‘result’ in second proviso of rule 5 of the
1991 Rules is not without significance. Our attention was drawn to
rule 4 (h) of the 1991 Rules that defines the expression ‘substantive
appointment’ and rule 9 which provides for preparation of seniority
list and it was submitted that the private appellants were substantively
appointed in 1991 in the cadre of Deputy Jailors by following the
procedure and in accordance with the 1980 Rules much before the
1994 appointees. It was argued on behalf of the appellants that the
year of vacancy against which a particular person is appointed is
wholly irrelevant for the purpose of determination of seniority and
seniority cannot relate back to the date of vacancy. In this regard,
reliance was placed upon the decisions of this Court in : (i) Jagdish
Ch. Patnaik & Ors. v. State of Orissa & Ors.1; (ii) Ajit Kumar Rath v.
State of Orissa & Ors.2; (iii) Uttaranchal Forest Rangers’ Assn.
(Direct Recruit) & Ors. v. State of U.P. & Ors.3 and (iv) State of
Uttaranchal & Anr. v. Dinesh Kumar Sharma4.
16. Learned senior counsel for the appellants also contended
that the High Court erred in invoking Article 226 of the Constitution in
the matter when the writ petition filed by Samar Bahadur Singh (Writ
Petition No. 13138/2000) was dismissed on the ground of alternative
remedy. In this regard, the Constitution Bench decision of this Court
in L. Chandra Kumar v. Union of India & Ors.5 was referred.
17. On the other hand, Mr. Pramod Swaroop, learned senior
counsel for the contesting first respondent stoutly defended the
judgment of the High Court. He argued that the High Court was
justified in relying upon second proviso to rule 5 of the 1991 Rules
and holding that the candidates appointed on the basis of result of
earlier selection process must rank senior to the candidates who
were appointed on the basis of the result of subsequent selection. He
would submit that the UPPSC started selection process for filling 114
1 (1998) 4 SCC 456
2 (1999) 9 SCC 596
3 (2006) 10 SCC 346
4 (2007) 1 SCC 683
5 (1997) 3 SCC 261
posts of Deputy Jailor in 1987; it was in this process of selection that
the contesting private respondent was selected and appointed
(although in the year 1994) and insofar as the 1991 appointees are
concerned they underwent the subsequent selection process which
started in the year 1990. Mr. Pramod Swaroop contended that 1991
Rules have the overriding effect and the seniority amongst 1991 and
1994 appointees has to be determined with reference to rule 5 of
1991 Rules. According to him, the expression ‘selection’ in second
proviso to rule 5 cannot be construed to mean only the ‘final
selection’ and since the process of selection involves several steps
which begins with the issuance of the advertisement and ends with
the preparation of select list, the expression ‘result of selection’
means the result of entire selection process. In this regard, heavy
reliance was placed by him on few decisions of this Court, namely, (i)
A.P. Public Service Commission, Hyderabad & Anr. v. B. Sarat
Chandra & Ors.6 (ii) State of U.P. v. Rafiquddin & Ors.7; (iii) Surendra
Narain Singh & Ors. v. State of Bihar & Ors.8 and (iv) Balwant Singh
Narwal & Ors. v. State of Haryana & Ors.9.
6 (1990) 2 SCC 669
7 1987 (Suppl.) SCC 401
8 (1998) 5 SCC 246
9 (2008) 7 SCC 728
18. It must be stated immediately that the recruitment to the
posts of Deputy Jailor in the State of Uttar Pradesh is governed by
the 1980 Rules which have been framed by the Governor in exercise
of the powers conferred by the proviso to Article 309 of the
Constitution. 1980 Rules provide for cadre of service, procedure for
recruitment to the post of Deputy Jailor, reservation, academic
qualifications, determination of vacancies, appointment, probation,
confirmation and inter se seniority of persons appointed to the
service. However, by subsequent Rules, namely, 1991 Rules which
too were made by the Governor under the proviso to Article 309 of
the Constitution, comprehensive provisions have been made for the
determination of seniority of all government servants in the State of
Uttar Pradesh. Rule 2 of the 1991 Rules says 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
Governor under the proviso to Article 309 of the Constitution and rule
3 gives to the 1991 Rules overriding effect notwithstanding anything
to the contrary contained in earlier service rules. In this view of the
matter, inter se seniority amongst 1991 and 1994 appointees by
direct recruitment has to be determined under the 1991 Rules and
rule 22 of the 1980 Rules has to give way to the 1991 Rules.
19. Now, insofar as 1991 Rules are concerned, the said
Rules provide for determination of seniority in relation to different
categories. Rule 5 makes provision for determination of seniority in
cases where according to service rules, appointments are made only
by the direct recruitment. It would be seen that 1980 Rules are the
relevant service rules for appointment to the posts of Deputy Jailor.
As per rule 5 of the 1980 Rules, there are two sources of recruitment
to the post of Deputy Jailor; one, by direct recruitment and the other,
by promotion from amongst the permanent Assistant Jailors in ratio of
50% each. The word ‘only’ in rule 5 of the 1991 Rules is of
significance and it becomes clear therefrom that rule 5 of the 1991
Rules has no application at all for determination of inter se seniority of
the 1991 and 1994 appointees because 1980 Rules provide for
appointment to the posts of Deputy Jailor by direct recruitment as well
as by promotion. It is only where service rules in the State of U.P.
provide for appointments by direct recruitment alone that rule 5 of
1991 Rules comes into play for determination of seniority and not
otherwise. The reliance placed by the High Court upon second
proviso to rule 5 of the 1991 Rules for determination of inter se
seniority amongst 1991 and 1994 appointees is, thus, misplaced.
The High Court fell into grave error in not appreciating that rule 5 of
the 1991 Rules operates where service rules provide for
appointments by direct recruitment only. Rule 6 and rule 7 of the
1991 Rules also have no application as these rules provide for
determination of seniority where appointments are made by
promotion only from a single feeding cadre or only from several
feeding cadres. These appeals are not concerned with the
determination of inter se seniority between the promotees. Rule 8 of
the 1991 Rules makes a provision for determination of seniority
where according to service rules appointments are made both by
promotion and by direct recruitment. The marginal note of rule 8
‘seniority where appointments by promotion and direct recruitment’
and the body of sub-rule (1) of rule 8 that provides, ‘where according
to the service rules appointments are made both by promotion and by
direct recruitment’, leave no manner of doubt that rule 8 of the 1991
Rules would govern the controversy in the present case since 1980
Rules clearly provide for appointments to the posts of Deputy Jailor
by two sources i.e., by direct recruitment as well as by promotion. It is
true that the controversy in hand relates to determination of seniority
between two groups of direct recruits to the posts of Deputy Jailor,
one appointed in 1991 through the selection made by the Selection
Commission and the other in 1994 by the UPPSC and the
controversy does not relate to determination of inter se seniority
between direct recruitees and the promotees, but that does not take
away the applicability of rule 8 of the 1991 Rules. It is so because in
the 1991 Rules, the basis of categorization for the purpose of
determination of seniority is the method and manner for appointments
in the service rules. It is in this view of the matter that rule 5, rule 6,
rule 7 and rule 8 of the 1991 Rules provide for determination of
seniority amongst different categories of appointments made under
the service rules. Once it is held that rule 8 is applicable for
determination of inter se seniority amongst 1991 and 1994 recruitees
to the posts of Deputy Jailor, it is clear that their seniority has to be
determined on the basis of their substantive appointments. Insofar as
the present controversy is concerned, none of the provisos to sub-rule
(1) is attracted since the appointment orders of 1994 appointees do not
specify the back date nor these appeals are concerned with a situation
where 1991 appointees failed to join on time. These appeals are also
not concerned with seniority inter se of persons appointed on the
result of one selection through direct recruitment or through direct
recruitment and promotion in one selection and, therefore, provisions
of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1)
of rule 8 in unambiguous terms states that the seniority of persons,
subject to the provisions of the sub-rules (2) and (3), shall be
determined from the date of the order of their substantive
appointments. Rule 4(h) defines ‘substantive appointment’ as an
appointment, not being an ad-hoc appointment, on a post in the cadre
of service, made after selection in accordance with the service rules
relating to that service. It, thus, becomes abundantly clear that for
determination of inter se seniority between the two rival groups (1991
and 1994 appointees by direct recruitment) what is relevant is the
date of the order of their substantive appointment and since the
substantive appointment of 1991 appointees is much prior in point of
time, they must rank senior to the 1994 appointees.
20. It is now appropriate to consider the authorities cited at
the Bar and a couple of other decisions. In Rafiquddin7, this Court in
the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made
general observations that seniority in the service is determined on the
basis of the year of the competitive examination irrespective of the
date of appointment and inter se seniority of candidates recruited to
the service is determined on the basis of their ranking in the merit list.
21. In A.P. Public Service Commission6, this Court was
concerned with the Andhra Pradesh Police Service Rules, 1966.
While dealing with the word ‘selection’ in rule 5(A)(i) of the said
Rules, this Court observed as follows :
“If the word ‘selection’ is understood in a sense meaning
thereby only the final act of selecting candidates with
preparation of the list for appointment, then the
conclusion of the Tribunal may not be unjustified. But
round phrases cannot give square answers. Before
accepting that meaning, we must see the
consequences, anomalies and uncertainties that it may
lead to. The Tribunal in fact does not dispute that the
process of selection begins with the issuance of
advertisement and ends with the preparation of select
list for appointment. Indeed, it consists of various steps
like inviting applications, scrutiny of applications,
rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling
for interview or viva voce and preparation of list of
successful candidates for appointment. Rule 3 of the
Rules of Procedure of the Public Service Commission is
also indicative of all these steps. When such are the
different steps in the process of selection, the minimum
or maximum age for suitability of a candidate for
appointment cannot be allowed to depend upon any
fluctuating or uncertain date. If the final stage of
selection is delayed and more often it happens for
various reasons, the candidates who are eligible on the
date of application may find themselves eliminated at
the final stage for no fault of theirs. The date to attain
the minimum or maximum age must, therefore, be
specific, and determinate as on a particular date for
candidates to apply and for recruiting agency to
scrutinise applications. It would be, therefore,
unreasonable to construe the word selection only as the
factum of preparation of the select list. Nothing so bad
would have been intended by the rule making authority.”
Pertinently, the aforesaid observations of this Court with regard to the
word ‘selection’ are in the context of the age eligibility as the provision
under consideration read, ‘has completed the age of 21 years and
had not completed the age of 26 years on the first day of July of the
year in which the selection is made’. The aforesaid observations,
therefore, have to be read in the context of the provision under
consideration before this Court.
22. In Ram Janam Singh v. State of U.P. and Anr.10 , this
Court reiterated that the date of entry into a service is the safest rule
to follow while determining the inter se seniority between one officer
or the other or between one group of officers and the other recruited
from the different sources. It was observed that this is consistent with
the requirement of Articles 14 and 16 of the Constitution. It was,
however, observed that if the circumstances so require, a group of
persons can be treated a class separate from the rest for any
preferential or beneficial treatment while fixing their seniority, but,
normally such classification should be by statutory rule or rules
framed under Article 309.
23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik1,
while construing the word ‘recruited’ occurring in Orissa Service of
10 (1994) 2 SCC 622
Engineers Rules, 1941, held that a direct recruit is recruited when
formal appointment order is issued and not when recruitment process
is initiated. This is what this Court said :
“34. The only other contention which requires
consideration is the one raised by Mr Raju
Ramachandran, learned Senior Counsel appearing for
the intervenors, to the effect that the expressions
“recruitment” and “appointment” have two different
concepts in the service jurisprudence and, therefore,
when Rule 26 uses the expression “recruited” it must be
a stage earlier to the issuance of appointment letter and
logically should mean when the selection process
started and that appears to be the intendment of the
rule-makers in Rule 26. We are, however, not
persuaded to accept this contention since under the
scheme of Rules a person can be said to be recruited
into service only on being appointed to the rank of
Assistant Engineer, as would appear from Rule 5 and
Rule 6. Then again in case of direct recruits though the
process of recruitment starts when the Public Service
Commission invites applications under Rule 10 but until
and unless the Government makes the final selection
under Rule 15 and issues appropriate orders after the
selected candidates are examined by the Medical
Board, it cannot be said that a person has been
recruited to the service. That being the position it is
difficult for us to hold that in the seniority rule the
expression “recruited” should be interpreted to mean
when the selection process really started. That apart the
said expression “recruited” applies not only to the direct
recruits but also to the promotees. In case of direct
recruits the process of recruitment starts with the
invitation of application by the Commission and in case
of promotees it starts with the nomination made by the
Chief Engineer under Rule 16. But both in the case of
direct recruits as well as in the case of promotees the
final selection vests with the State Government under
Rules 15 and 18 respectively and until such final
selection is made and appropriate orders passed
thereon no person can be said to have been recruited to
the service. In this view of the matter the only
appropriate and logical construction that can be made of
Rule 26 is the date of the order under which the persons
are appointed to the post of Assistant Engineer, is the
crucial date for determination of seniority under the said
Rule………”
24. While dealing with the dispute relating to inter se seniority
of Munsifs—one set of Munsif recruited on the basis of 15th
examination held by the Public Service Commission under the Bihar
Judicial Service (Recruitment) Rules, 1955 and another set of
Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad
hoc Recruitment Rules, 1974, in Surendra Narain Singh8, this Court
held that candidates recruited against earlier vacancies shall rank
senior to those recruited against the later vacancies.
25. In Ajit Kumar Rath2, this Court followed Jagdish Ch.
Patnaik1 and did not accept the contention that those who were
appointed against the vacancies of the earlier years although,
appointed later in point of time, must rank senior to the appointees of
the vacancies of the subsequent years though appointed in prior point
of time.
26. This Court emphasized in the case of Uttaranchal Forest
Rangers’ Association3 that no retrospective promotion can be
granted nor any seniority can be given on retrospective basis from a
date when an employee has not even born in the cadre. In this
regard, the Court relied upon earlier decisions of this Court in State
of Bihar & Ors. v. Akhouri Sachindra Nath & Ors.11 and Jagdish Ch.
Patnaik1.
27. In the case of Dinesh Kumar Sharma4, this Court was
concerned with U.P. Agriculture Group ‘B’ Service Rules, 1995 and
the 1991 Rules. With reference to rule 8 of the 1991 Rules, this
Court held that seniority cannot be reckoned from the date of
occurrence of the vacancy and should be reckoned only from the
date of substantive appointment to the vacant post under the Rules
and not retrospectively from the date of occurrence of vacancy.
28. The dispute in Balwant Singh Narwal9 related to seniority
of the Principals, some of whom were appointed between 1995 and
2000 and others on May 26, 2000. The Principals who were
appointed on May 26, 2000 were given seniority with retrospective
effect from June 2, 1994. This Court while relying upon a decision in
Surendra Narain Singh8 held as under :
11 (1991 (suppl.) 1 SCC 334
“9. There is no dispute about these general principles.
But the question here is in regard to seniority of
Respondents 4 to 16 selected on 1-10-1993 against
certain vacancies of 1992-1993 who were not appointed
due to litigation, and those who were selected against
subsequent vacancies. All others from the same merit
list declared on 1-10-1993 were appointed on 2-6-1994.
Considering a similar situation, this Court, in Surendra
Narain Singh v. State of Bihar held that candidates who
were selected against earlier vacancies but who could
not be appointed along with others of the same batch
due to certain technical difficulties, when appointed
subsequently, will have to be placed above those who
were appointed against subsequent vacancies.”
29. The Constitution Bench of this Court in Direct Recruit
Class II Engineering Officers’ Association v. State of Maharashtra &
Ors.12 stated the legal position with regard to inter se seniority of
direct recruits and promotees and while doing so, inter alia, it was
stated that once an incumbent is appointed to a post according to
rules, his seniority has to be counted from the date of his appointment
and not according to the date of his confirmation.
30. From the above, the legal position with regard to
determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the
context of the service rules under which the appointment is made. It
may mean the date on which the process of selection starts with the
12 (1990) 2 SCC 715
issuance of advertisement or the factum of preparation of the select
list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as
per the service rules. The date of entry in a particular service or the
date of substantive appointment is the safest criterion for fixing
seniority inter se between one officer or the other or between one
group of officers and the other recruited from the different sources.
Any departure therefrom in the statutory rules, executive instructions
or otherwise must be consistent with the requirements of Articles 14
and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back
date and if it is done, it must be based on objective considerations
and on a valid classification and must be traceable to the statutory
rules.
(iv) The seniority cannot be reckoned from the date of occurrence
of the vacancy and cannot be given retrospectively unless it is so
expressly provided by the relevant service rules. It is so because
seniority cannot be given on retrospective basis when an employee
has not even born in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the mean
time.
31. In light of the legal position summed up above and rule 8
of the 1991 Rules, it is plain that 1991 appointees who were selected
and appointed in accordance with the service rules cannot be made
junior to 1994 appointees even if it is assumed that the selection and
appointment of 1994 appointees was for earlier vacancies. The 1991
appointees having been appointed substantively much prior in point
of time, they are entitled to rank senior to 1994 appointees. As
already noticed above, rule 5 of the 1991 Rules has no application for
determination of inter se seniority of the Deputy Jailors appointed by
direct recruitment in 1991 and 1994. The consideration of the matter
by the High Court is apparently flawed and cannot be sustained. In
the present fact situation, it must be held that 1994 appointees cannot
legitimately claim their seniority over 1991 appointees.
32. In view of the above, it is not necessary to deal with the
objection raised by the appellants about maintainability of writ petition
filed by contesting private respondent directly before the High Court
bypassing the remedy before the State Service Tribunal.
33. For the foregoing reasons, these appeals are allowed; the
judgment and order dated December 2, 2002 passed by the
Allahabad High Court is set aside. The seniority of the two groups of
direct recruits to the posts of Deputy Jailor, one appointed through
the selection made by the Uttar Pradesh Subordinate Services
Selection Commission in 1991 and the other by Uttar Pradesh Public
Service Commission in 1994 shall be now determined as indicated
above, if not determined in the manner stated above, so far. The
parties shall bear their own costs.
….….……………. J.
(R.M. Lodha)
NEW DELHI,
FEBRUARY 10, 2011.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9906 OF 2003
PAWAN PRATAP SINGH & ORS. … APPELLANTS
VERSUS
REEVAN SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.9907 OF 2003
AND
CIVIL APPEAL NO.9908 OF 2003
J U D G M E N T
Aftab Alam, J.
I have had the benefit of going through the judgment prepared by my
brother Lodha J. The judgment deals with all the relevant facts and the
statutory provisions and by application of rule 8 of the Uttar Pradesh
Government Servants Seniority Rules, 1991 (the 1991 Rules) concludes that
the appellants who were appointed as Deputy Jailers in 1993 (on the basis of
the selection process that commenced on October 27, 1990) would rank
senior to the first respondent who was appointed in 1994, even though in his
case the selection process had commenced much earlier on December 26,
1987. I too reach the same conclusion but by a different way and for slightly
different reasons.
The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service
Rules, 1980 (the 1980 Rules) under which the appellants and the first
respondent were appointed as Deputy Jailers had, in rule 22, the provision
for determination of seniority in any category of posts in the service. But
rule 22 of the 1980 Rules was superseded by the 1991 Rules framed under
Article 309 of the Constitution and coming into force with effect from
March 20, 1991. The 1991 Rules were made applicable to all government
servants whose recruitments were governed by rules framed under Article
309 of the Constitution and were given overriding effect over all other
service rules. Both the appellants and respondent no. 1 were appointed after
the 1991 Rules came into force. Hence, both sides agreed that the question
of their inter se seniority can be determined only under the provisions of the
1991 Rules.
The High Court on application of the (second) proviso to rule 5 of the
1991 Rules held that respondent no.1 would rank senior to the appellants,
observing that the candidates who were selected in the selection process that
commenced in 1987 should rank senior to those selected in the selection
process commencing much later in 1990. By a process of semantic
reasoning, the High Court tried to make a distinction between ‘selection’ and
‘appointment’ and held that under the proviso to rule 5 what was
determinative was not appointment but selection. Proceeding on that basis
the High Court held that though the appellants were appointed earlier (in
1991) than respondent no.1 who was appointed later (in 1994), nevertheless
they would rank junior to him because they were appointed “on the result of
a subsequent selection”.
I am completely unable to see how the facts of this case can be
squeezed to fit into the proviso to rule 5 of the 1991 Rules. An indication of
the kind of cases to which the proviso would apply is given in the
explanation to it. Further, in service law it is not unknown (especially in
cases where recruitments are made regularly and the selection process is not
inordinately prolonged) that even while a select list is alive and it is yet to be
completely exhausted another select list on the basis of the next selection
comes into being and appointments are made from that list. In such a
situation certain vacancies relatable to the previous selection may still be
filled up from the waiting list/unexhausted previous list and in those cases
even though the appointment might take place later, by virtue of the proviso
in question, the candidate from the previous list would rank senior to the
candidate appointed from the third list. To my mind, the proviso relied upon
by the High Court has no application to the facts of this case where the two
appointments, based on selections made by two different agencies, are
separated by a gap of two and a half years.
In my brother’s judgment, rule 5 is discarded in preference to rule 8 of
the 1991 Rules because the post of Deputy Jailer is open to two modes of
recruitment, one direct and the other by promotion from amongst the
permanent Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed out
that rule 5 of the 1991 Rules begins by expressly stating, “Where according
to the service rules appointments are to be made only by the direct
recruitment….” On the other hand rule 8 begins by saying, “Where
according to the service rules appointments are made both by promotion and
by direct recruitment….” And under rule 8, seniority is to be determined on
the basis of the date of the order of the substantive appointment. Applying
the date of substantive appointment as the basis to determine seniority the
appellants would indeed rank senior to respondent no.1.
With full respect, however, I am unable to persuade myself in regard
to the application of rule 8 of the 1991 Rules to the facts of the case. The
facts of the case are extraordinary and they seem to me, to fall completely
outside the provisions of the 1991 Rules. An attempt to fit those facts into
any of the provisions of the 1991 Rules would, to my mind, amount to doing
violence to the rules. The 1991 Rules were not made exclusively for the Jail
Executive Subordinate Service (to which the post of Deputy Jailer belongs)
but those rules apply to all government servants for whose recruitments rules
are framed under the proviso to Article 309 of the Constitution. In making
rules of general application it is not possible to take into account a situation
that is way out of the normal.
In the main judgment, the facts of the case are taken note of in detail
but it would be useful to briefly recapitulate them here. Before November
25, 1989, the statutory agency to make the selection for appointment to the
post of Deputy Jailer was the Uttar Pradesh Public Service Commission
(hereinafter “UPPSC”). On December 26, 1987 the UPPSC issued an
advertisement for filling up a large number of vacancies in different posts,
including 144 vacancies in the post of Deputy Jailers. It held the main
examination of the candidates applying in response to the advertisement in
1991 and finally declared the result on July 27, 1993. On the basis of the list
received from the UPPSC, the State Government issued appointment letters
to the selected candidates (one of them being respondent no. 1) on April, 26
1994. In short, the selection process started by the UPPSC was completed
and materialized in appointments of the selected candidates in seven years.
In the meanwhile, it seems, the State Legislature, having regard to the long
delays in the completion of selection by the UPPSC, decided to lighten its
burden by taking away from it the recruitments on all group ‘C’ posts in the
State. The State Legislature, accordingly, passed the Uttar Pradesh
Subordinate Services Selection (Commission), Act, 1988 to establish a
Subordinate Services Selection Commission for direct recruitment to all
group ‘C’ posts in the State. The Act came into force with effect from
February 15, 1988. After coming into force of this Act, a notification had to
be issued by the Governor on November 25, 1989, clarifying that the
vacancies for which requisition had earlier been made to the UPPSC would
be filled up on the recommendation of the UPPSC alone and that is how the
UPPSC continued to have seisin over the vacancies advertised by it on
December 26, 1987. The newly formed Selection Commission issued an
advertisement on October 27, 1990, for filling up 60 posts of Deputy Jailer.
It completed the selection process and sent the select list to the State
Government in 1991 and on that basis the appellants were appointed vide
appointment letter dated November 23, 1991 issued by the State
Government. At this stage, it is important to note that in terms of the
advertisement issued by the Selection Commission on October 27, 1990,
there was nothing to prevent those (including respondent no.1) who might
have applied in response to the earlier advertisement by the UPPSC to also
apply for the 60 vacancies under the later advertisement by the Selection
Commission. When this aspect of the matter was pointed out, it was stated
on behalf of the respondents that by the time the later advertisement by the
Selection Commission was issued on October 27, 1990 some of the
applicants before the UPPSC had become overage and were no longer
eligible to apply. There are no details available as to how many of the 144
candidates appointed from the select list of the UPPSC had become overage
by the time the advertisement of the Selection Commission came on October
27, 1990; even in the case of respondent no. 1 it is not stated clearly and
definitely that he was unable to apply in response to the advertisement of
October 27, 1990, issued by the Selection Commission because by that time
he had become over age. Be that as it may, this aspect of the matter is only
incidental and it is recalled simply to point out that it is not open to the
respondents to contend that the position in which they are placed is the result
of circumstances over which they had no control and to make an appeal in
the name of equity.
The purpose in recapitulating the facts of the case is to show that the
situation arising from the two sets of appointments and the resultant dispute
of seniority is highly anomalous. It should be accepted as such instead of
trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules
were not designed to resolve a dispute of seniority arising from such facts. If
I put on the cap of the rule maker I cannot imagine myself conceiving of a
fact situation of this kind and making a provision to meet the contingency.
Now, in case the seniority between the appellants and the first
respondent is to be determined outside the 1991 Rules, one has to go to the
basic principles for determination of seniority. One cardinal principle for
determination of seniority is that unless provided for in the rules, seniority
can not relate back to a period prior to the date of the incumbent’s birth in
the service/cadre.
As a matter of fact this principle is fully dealt with in the main
judgment in which reference is made to the decisions of this Court in Ram
Janam Singh v. State of UP, (1994) 2 SCC 622; Uttaranchal Forest
Rangers’ Association (Direct Recruit) & Ors. v. State of UP & Ors., (2006)
10 SCC 346; State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors., 1991
Supp (1) SCC 334 and the principle is summarized in sub-paragraphs (2) &
(4) of paragraph 30 of the judgment.
To the decisions referred to on this point in the main judgment I may
add just one more in Suraj Parkash Gupta v. State of J & K, (2000) 7 SCC
561. The decision relates to a dispute of seniority between direct recruits and
promotees but in that case the Court considered the question of ante-dating
the date of recruitment on the ground that the vacancy against which the
appointment was made had arisen long ago. In paragraph 18 of the decision
(at page 578 of the SCC) the Court framed one of the points arising for
consideration in the case as follows:
“(4) Whether the direct recruits could claim a retrospective date
of recruitment from the date on which the post in direct
recruitment was available, even though the direct recruit was
not appointed by that date and was appointed long thereafter? ”
This Court answered the question in the following terms:
“Point 4:
Direct recruits cannot claim appointment from date of vacancy
in quota before their selection
We have next to refer to one other contention raised by the
respondent-direct recruits. They claimed that the direct
recruitment appointment can be ante-dated from the date of
occurrence of a vacancy in the direct recruitment quota, even if
on that date the said person was not directly recruited. It was
submitted that if the promotees occupied the quota belonging to
direct recruits they had to be pushed down, whenever direct
recruitment was made. Once they were so pushed down, even if
the direct recruit came later, he should be put in the direct
recruit slot from the date on which such a slot was available
under the direct recruitment quota.
This contention, in our view, cannot be accepted. The reason as
to why this argument is wrong is that in service jurisprudence, a
direct recruit can claim seniority only from the date of his
regular appointment. He cannot claim seniority from a date
when he was not borne in the service. This principle is well
settled. In N.K.Chauhan v. State of Gujarat, Krishna Iyer, J.
stated:
Later direct recruit cannot claim deemed dates of appointment
for seniority with effect from the time when direct recruitment
vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India, it was held that a
later direct recruit cannot claim seniority from a date before his
birth in the service or when he was in school or college.
Similarly it was pointed out in A.N. Pathak v. Secretary to the
Government that slots cannot be kept reserved for the direct
recruits for retrospective appointments.”
In conclusion I would say that in the facts of this case the issue of
seniority between the appellants and respondent no. 1 must be decided on
the basis of the aforesaid principle and there is no need to refer to rule 8 of
the 1991 Rules. By this way I also hold that respondent no.1 cannot claim
seniority over the appellants and the appellants would rank senior to
respondent no.1.
In the result, the appeals are allowed. The judgment of the High Court
is set aside and the writ petition filed by respondent no. 1 in the High Court
is directed to be dismissed.
There shall be no order as to costs.
………………………..J.
(Aftab Alam)
New Delhi;
February 10, 2011.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9906 OF 2003
PAWAN PRATAP SINGH & ORS. … APPELLANTS
VERSUS
REEVAN SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.9907 OF 2003
AND
CIVIL APPEAL NO.9908 OF 2003
O R D E R
In view of the two separate judgments (which are concurrent in
nature) pronounced by us in these appeals today, the appeals are allowed.
There shall be no order as to costs.
………………………J.
(Aftab Alam)
………………………J.
(R.M. Lodha)
New Delhi;
February 10, 2011
