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 2 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 2 "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 2 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 there from 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 2 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. 2

Pawan Pratap Singh & Ors. Vs Reevan Singh & Ors.

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, 3 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 3 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 3 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 3 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 3 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 3 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. 3

Pawan Pratap Singh & Ors. Vs Reevan Singh & Ors.

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

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