Uttaranchal Forest Rangers' Asson. & Ors Vs. State of U.P. & Ors 
Insc 612 (25 September
Ar. Lakshmanan & Tarun Chatterjee
out of SLP (C) No. 7375/2005) WITH
Civil Appeal No.4250 of 2006 (Arising out of SLP(C) No. 1860/2006) Dr. AR. Lakshmanan,
appeals were filed against the final judgment and order dated 12.4.2004 passed
by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 366(S/B) of
2002 whereby the High Court allowed the writ petition filed by Shri C.B. Chhimwal,
respondent No.5 herein in S.L.P.(c) No. 7375 of 2005 and against the final
judgment and order dated 26.11.2001 in W.P.(C) No. 610(S/B) of 1996 whereby the
High Court allowed the writ petition filed by Shri Suresh Chandra Sharma and Shri
Vijay Kumar Mishra, respondent Nos. 5 & 6 herein in S.L.P.(c) No.
appellants in these matters are direct recruits to the post of Forest Rangers
in the State of U.P, now Uttaranchal.
are the State of U.P, State of Uttarnchal and Ors.
brief facts are as follows:
state of U.P, during the period 1969-1979, there was no direct appointment to
the post of Forest Rangers. The Government kept promoting Deputy Forest Rangers
on ad hoc basis to the post of Forest Rangers if any vacancy arose.
30.11.1989, by a Government Resolution, 124 persons who were promoted on ad hoc
basis to the post of Forest Rangers were regularized in 1972 -1979. However, as
of 30.11.1989, there were not enough vacancies in the promotee quota to
accommodate all the regularized Forest Rangers.
some of the regularized 124 Forest Rangers were pushed down and accommodated in
1990 and 1991. By the year 1991, all the 124 regularised Forest Rangers were
accommodated. In 1991, there was only one vacancy in the promotee quota.
in 1989-1990, the members of the appellants Association were appointed in the
year 1990 as Forest Rangers on the basis of competitive exam held by the U.P.
Public Service Commission in 1989. They were substantively appointed on the
post of Forest Rangers by direct recruitment on various dates in 1990 e.g. the
President of the Appellants Association was appointed on 01.03.1990. Appellant
No.3 was appointed on 01.11.1990. The appointments were within the direct
30.01.1991, without realizing that there was no vacancy in the promotee quota
of Forest Rangers the State of U.P. sent a
requisition to the Public Service Commission to recommend 410 persons for
promotion to the post of Deputy Forest Rangers. This mistake has been admitted
by the State of U.P. in their counter affidavit before
the High Court as also in this Court.
06.07.1991, the State PSC vide its letter dated 06.07.1991 sent the names of
Forest Rangers as if there were vacancies from the period 1979 to 1989 in the promotee
quota. The UPPSC allotted the officers on the basis of the selection year.
Needless to mention there is no provision in the Service Rules for allocation
on the basis of year of selection. In any event, there were no vacancies and,
therefore, the basis of this recommendation was incorrect.
basis of this recommendation on 17.07.1991, 356 Deputy Forest Rangers were
promoted to the post of Forest Rangers 'from the date of taking charge'. They
were not given any back-dated promotion. The respondents have not challenged
their promotion order which promoted them w.e.f. the day they took charge.
31.05.1996, when the State of U.P. was
preparing the seniority list of Forest Rangers, it went strictly by the
Seniority Rules. Since the appellants were substantively appointed within their
quota in the year 1990, they were placed senior to the respondents. However, as
of 17.07.1991, since there was only one vacancy in the promotee quota of Forest
Rangers, the respondents herein were notionally pushed down for the purposes of
the seniority alone and were adjusted till 1996.
to mention the respondents get all the benefits of a Forest Ranger though there
was no vacancy when they were promoted, except seniority. Since, there was no
direct recruitment after 1990; the respondents do not suffer at all.
July 1996, two of the Promotee Forest Rangers namely, Shri Suresh Chandra
Sharma and Shri Vijay Kumar Mishra figuring at Sl. Nos. 286 and 277 in the
promotion order of 17.07.1991 challenged the seniority list dated 31.05.1996 by
way of a Writ Petition No.610 of 1996 in the High Court of Allahabad, claiming
State of Uttaranchal came into being on 8th of November,
30.04.2001, the respondent Suresh Chandra Sharma opted for the State of Uttaranchal and started working in the State of
Uttaranchal w.e.f. 30.04.2001. However, he did
not implead the state of Uttaranchal or the present appellants as a party to
the writ petition.
20.07.2001, the pending Writ petition was allowed by the High Court and the
High Court directed that the seniority list on challenge be corrected by
showing the promotees as senior to the direct recruits by an order dated
12.06.2002, the new State of Uttaranchal
notified in its own seniority list of Forest Rangers in which the appellants
were shown as seniors to the promotees.
promotee Shri C.B. Chhimwal respondent no.5 filed a writ petition challenging
the seniority list in the High Court of Allahabad. The High Court by an order
dated 12.04.2004 allowed Chhimwal's claim following its previous order in the
case of Suresh Chandra Sharma.
appellants were unaware of the said order of the Allahabad High Court at Lucknow. It was only when the said order
was produced before the officers of the State of Uttaranchal, by respondent no.5, the appellants came to know about the
order which was passed by the High Court without making them a party.
the Chhimwal case, 44 others moved the Allahabad High Court challenging the
said seniority list. The High Court of Allahabad disposed off all the writ
petitions and allowed the claim of all the writ petitioners and ordered
retrospective application of the order.
order dated 18.01.2005, the State of U.P. issued an amended promotion order by
which 45 persons have been granted retrospective seniority, some from
01.01.1979 i.e. from a period of 12 years prior to their actual date of
promotion, even though, admittedly, there was no vacancy in the promotee quota,
the effect of this order would be in the state of Uttaranchal as well.
appellants thereafter approached this Court on 20.02.2005 seeking a stay on the
application of the order of the High Court of Allahabad. This Court ordered
stay of the operation of the order of the High Court on 04.04.2005.
issue now before us is whether the seniority list published in 1996 is to be
interfered with due to the order of the High Court of Allahabad dated 12.11.2001.
heard Mr. Jaideep Gupta, learned senior counsel appearing for the appellants
and Mr. N.N. Goswami, learned senior counsel, Dr. R.G. Padia, learned senior
counsel, Mr. A.S. Rawat, learned Additional Advocate General and Mr. Gaurav Agrawal,
learned counsel for the respondents.
Gupta, learned senior counsel appearing for the appellants submitted that:
That there were
no vacancies in the promotee quota prior to 1991 and hence the High Court
should not have directed the State to grant retrospective promotion and
vacancies arose in the promotee quota of Forest Rangers for the first time in
against the said vacancies, 124 Forest Rangers, who had been promoted to the
post of Forest Rangers on an ad hoc basis between 1973-77 were regularized and
adjusted on 30th
Therefore, 124 vacancies arising between 1987 and 1990 in the promotee quota
had been filled up on a regular basis by the order dated 30.11.1989. Therefore,
it is only in the year 1991 that a clear vacancy arose in the promotee quota.
result of this, even the persons who are promoted in1991 could not be given
seniority from 1991, but had to be pushed down and received their seniority on
different dates between 1991 and 1996 as and when the vacancy arose. Further it
was submitted that, if the High Court orders are given effect to, then 356
Deputy Forest Rangers would become entitled to promotion ahead of the direct
recruits far in excess of the quota.
retrospective promotion or seniority can be granted from a date when an
employee has not even been borne in the cadre so as to be adversely appointed
validly in the meantime, as decided by this court in the case of K.C. Joshi vs.
Union of India, 1992 Suppl (1) SCC 227.
Seniority Rules of 1991 were not taken into consideration by the High Court.
Rule 8 of the Seniority Rules, states that, "Section 8 Where appointments
from any source fall short of the prescribed quota and appointment against such
unfilled vacancies are made in subsequent year or years, the persons so
appointed shall not get seniority of any earlier year, but shall get the
seniority of the year in which their appointments are made."
above stated Rules have overriding effect and hence seniority has to be
consistent with the Rules ? That the High Court has proceeded on the basis that
vacancies arose in 1987-88 and therefore, the promotion should be given
retrospective effect. It was submitted that the date on which vacancies arises
cannot, without more, be made a basis of giving retrospective promotion and
seniority. Also the High Court did not give deserved amount of importance to
the recommendations of the Public Service Commission and the Rules laid down
under the Public Service Commission (Procedure) Rules, 1970.
That even if the
High Court was of the opinion that the seniority and promotion should be
reworked, the same should have referred back to the Public Service Commission
to ascertain who would be the relevant person(s) entitled to promotion. More
crucially, in the second impugned order dated 12.04.2004, 45 persons were
directed to be promoted without taking into consideration their relative
position in the list prepared by the Public Service Commission. By not
referring the matter to the PSC, incorrect persons were chosen by the High
Court for the purpose of promotion.
submissions, the learned senior counsel submitted that the seniority list under
challenge in the second writ petition was the seniority list of the Uttaranchal
State Government of 2002. Such challenge could not have been made before the Lucknow
Bench of the Allahabad High Court. He further submitted that none of the direct
recruits, who would be directly affected by an order, were made parties to the
writ petition. Therefore, the High Court did not have the benefit of competing
arguments in the matter. Even though the Principal Secretary of the State of Uttaranchal was made a party, and that the said
party was never served.
senior counsel, Dr. Padiya, appearing for respondent Nos. 1 & 2 submitted
That in the
State of U.P. promotion from the post of Dy.
Forest Ranger to the post of Forest Ranger was held up between 1976-77 to
1987-88 on regular basis. 124 Dy.Forest Rangers were promoted to the post of
Forest Ranger in the years 1973,1974,1975,1976,1977 & 1979 on ad hoc basis
beyond the prescribed limit for promotion.
That these ad
hoc Forest Rangers were regularised in the year 30.11.1988 and a requisition
was sent for regular promotion to the post of Forest Range Officer through
Public Service Commission, U.P., Allahabad vide letter no.E-1851/1-2-4 dated
30.01.1991 for 410 vacancies.
Forest Department issued the promotion order vide F.O. No.E-23/2-2-4 dated
17.07.1991 for 356 posts and subsequently for 3 posts again.
That all the
promotion orders were made prospective to the date of joining. It was further
submitted that promoted Range Officers were given their due seniority under
quota fixed for promotion, as is evident from para- 2 of Order No.E-3211/10 72,
dated 08.06.1995. It was further submitted that when the said seniority list
dated 08.06.1995 was under preparation a mistake was discovered that there was
no vacancy of Rangers in promotion quota and that there was no direct
recruitment of Forest Rangers from 1969-70 to 1976-77 and these vacancies were
utilized in favour of promotees thus adjusting the promotees against the
vacancies of quota of Direct Recruit, in excess of the quota available for promotees
under Rules. While preparing the final seniority list in question the promotees
occupying vacancies in excess of their quota has been pushed down and the year
wise vacancies of Direct Recruits have been carried forward and upon the
availability of Direct Recruit they have been placed en bloc in the vacancies
available in the quota for Direct Recruits.
That U.P. Govt.
Servant Seniority Rules 1991 was in force when the promotion order of above 359
Dy. Forest Ranger to the post of Forest Ranger was passed on 17.07.1991. The
rule 8(3) proviso allows vacancies of back years to be counted in the promotion
but specifically does not permit any promotion from back year. Consequently the
order dated 17.07.1991 was from the prospective date of joining.
inadvertent error, oversight, made in the year 1991 came into the notice of
department on 03.12.1994 and the same was referred to the State Govt. for
directions. The State Govt. gave guidelines vide letter no. 715/14-3-95-700
(236)/94 dated 11.09.1995 to give promotees the benefit for seniority after
following the respective quota for promotion strictly.
a final seniority list was published in 1995 and it was updated in 1996 by
deleting the name of retired/promoted persons only. The original seniority list
was published in 1995 and it was maintained in other respects as it is.
appointing authority of the petitioner in the Writ petition is PCCF, U.P., Lucknow
who was served with the judgment dated 26.11.2001 which found it fit to comply
with the judgment as it was passed with the respect to petitioners of the writ
petition. Only the judgment was complied with vide E-120/2-2-4(1) dated
30.01.2002 by the PCCF, U.P., Lucknow.
That after the
compliance of the judgment a set of new writ petitions and some pending writ petition
were clubbed by the High Court, Lucknow under Case No.366 (SB) 2002 and was decided on 12.04.2004 on the same
That a set of
contempt petition was moved by the petitioners of the above bunch case
specifically Contempt Surjit Kaur Sandhu & Ors. And Contempt Petition No. K.Prasad
and the date of personal appearance of officials was fixed. Under these
circumstances Principal chief Conservator of Forest, U.P. Lucknow passed F.O.
No. E- 114/2-2-4 dated 18.01.2005 and judgment dated 12.04.2004 was complied
with under pressure of Court order; giving notional promotions to the
a report was produced before the High Court in Contempt Case No. 1617/C/2004
C.B. Chhimwal vs. Smt. Surjit Kaur Sandhu by an affidavit dated 19.01.2005. The
High Court was not satisfied with the compliance and passed further direction
on 28.02.2005 in the aforesaid contempt petition. The operative part of the
order dated 28.02.2005 is reproduced below:-
apprehension genuinely appears to be sustainable as the consequential benefit
may be kept confined to the seniority alone. It is also not understood as to
why the phrase, 'notional promotion' has been used by Chief Conservator Officer
in his order of January 18, 2005 in the circumstances of there being uncertainty
on both the counts, the Principal Chief Conservator of Forests is directed to
issue a corrigendum of the aforesaid order giving details of the benefit that
would be extended to the petitioner in compliance of the judgment referred to
he is directed to file his supplementary counter affidavit and a copy of the
modified order within fifteen days, list on 21.04.2005 for orders. In case the
uncertainty still remains, the court would consider the petitioners request for
presence of the Principal Chief Conservator Officer before this Court."
That Dy. Rangers
who were promoted to the post of Range Officers vide F.O. No.E-23/2-2-4 dated
17.07.1991 cannot be promoted with retrospective effect from a date when they
were not borne in the cadre. Although in compliance of the judgment and order
passed by the High Court on 12.04.2004 the respondent no.6 along with other 44 Dy.
Rangers has been notionally promoted with effect from 01.07.1987. A copy of the
above promotion order was produced before the High Court in Contempt Case No.
1617/C/2004 C.B. Chhimwal vs. Smt. Surjit Kaur Sandhu and Another. But the
Court was not satisfied with the above compliance made by the department and on
28.02.2005 passed the above orders as mentioned above.
That the High
Court granted the benefit of seniority to respondent No.5 and other similarly
situated persons through connected writ petition with effect from retrospective
year 1979 to 1988 as the case may be, while their actual promotions have been
done in the year 1991 to the post of Forest Rangers. It is further stated that
service rules do not provide any time bound period for such promotion.
Commission might have selected the respondent No.5 along with other similarly
situated persons against the vacancy of a particular year but fixation of
seniority has to be made in accordance with the statutory provision of U.P.
Govt. Servant Seniority Rules 1991 framed under proviso to Art 309 of the
Constitution which strictly prohibits giving back year seniority.
That no direct
recruitment between the year 1969-70 to 1976-77, the then existing vacancies of
Forest Rangers were filled up by promotees of the department. As the vacancies
belonging to the direct recruit was occupied by promotees between this period,
the required number of post of promotees exceeded. Out of certain oversight the
number of vacancies shown as year wise vacancies sent to the Public Service
Commission against the vacancies of earlier years was wrongly indicated. At a
later date at the time of preparation of seniority list this inadvertent
mistake was noticed at the time of preparation of list on 08.06.1995 and
immediately exercise was carried out to check the inadvertent
mistake/oversight. The excess number of promotees against the Forest Rangers
was later adjusted and carried forward as per provisions. As per the above
facts it is crystal clear that there was no vacancy existing for the promotees
after the year 1973-74 till 1986-87. In the year 1987-88, 9 vacancies were
available after a long gap. Similarly, the vacancies available during the year
1988-89, 1989-90 and 1990-91 are 31, 54 & 84 respectively. It was out of
these vacancies, the adjustment of 124 Forest Rangers regularized on 30.11.1989
were adjusted. The name of respondent no. 5 namely C.B. Chhimwal is much below
and therefore he was not included in the above list.
That in view of
the facts and circumstances stated above and as per provisions of Law the
respondent no.5 along with other similarly situated 353 persons are not
entitled for back date seniority as well as consequential benefit as they have
not actually worked on the post of Range Officer, therefore this Court may very
kindly be pleased to quash the judgment and order dated 12.04.2004 passed by
the High Court of Allahabad, Lucknow Bench, Lucknow in Writ Petition
AAG, (State of Uttaranchal) appeared for the state of Uttaranchal, and
submitted as under:-
Rule 8(1) of the
Uttar Pradesh Government Servant Seniority Rules, 1991 provides conferment of
seniority to an employee from a pervious date provided that the date of such
conferment along with substantive appointment is mentioned in the order of
substantive appointment. Similar provision also exists in the Uttaranchal
Government Servant Seniority Rules, 2002. Hence it is clear that a person can
be promoted with retrospective effect. It is also obvious that a person cannot
be borne in a cadre till he is promoted to that cadre.
A vacancy to any
source of appointment can be ascertained only when that source of appointment
has a well defined share of posts in ratio with other sources of appointment.
In the present case, as per Rule 5(a) of Uttaranchal Subordinate Services
Rules, 1951, it is quite clear that there is no fixed/well defined quota for
the promoted source of appointment. Hence, allocation of year-wise vacancies
against promotion quota is not possible.
the question raised by the appellant that the seniority is reckoned from the
date when appointment was done to the post in substantive capacity or from the
date when the vacancy accrued for the post in the cadre is irrelevant.
Though the State
of Uttaranchal came into existence on 9.11.2000 but the final
allotment/distribution of Forest Rangers' between Uttar Pradesh and Uttaranchal
was done in February, 2004 with effect from 9.11.2004 by the Government of
India under Section 73(1) of U.P. Reorganisation Act, 2000 till the stage of
this final allotment, any dispute pertaining to their seniority was obviously
the matter of jurisdiction of the State of Uttar Pradesh.
Rule 8(3) of the
Rules is not applicable in this case because the appointments were not made by
both the direct and promoted sources of recruitment as a result of one
selection. Moreover, definite quota is not prescribed for the two sources of
As per Rule 8 of
the Seniority Rules, there is a provision 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. This implies that there is a provision of vacancies of being
carried over. Moreover, it is also in the interest of natural justice that employees
are promoted from the date they become eligible and the vacancy exits.
it would result in denying promotion to them for no fault of theirs and only
because of not holding selection procedure on time for which they cannot be
held responsible. As far as Rule 8(3) is concerned, it applies to one selection
made both for promotion and direct recruitment, which is not the case under
N.N. Goswami, learned senior Counsel appearing for respondent no.5, Chhimwal,
largely adopted the arguments of the state counsel. It was submitted that, this
is a simple case of promotion of permanent Deputy Rangers against the vacancies
as and when it occurred and the respondent was entitled for promotion. The High
Court has correctly decided the issue in question in W.P No. 610 (S/B) of 1996,
which the petitioners have accepted and did not prefer a petition for Special
Leave to appeal then, and the same issue cannot be agitated after four years
and after compliance has already been done. The present petition against
impugned order was not decided on merit but was decided on the basis of parity.
learned counsel submitted further that, the present case squarely is covered by
the judgment of this court in the case of P.N. Premachandran v. State of Kerala
& Ors (2004) 1 SCC 245, where it was held that, ".we do not find any
irregularity in the matter of grant to promote the respondents with effect from
view, of the administrative lapse, the Departmental Promotion Committee did not
hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such
administrative lapse on the part of the State of Kerala for no fault on their, part. It is also not disputed, that
in ordinary course they were entitled to be promoted to the post of Assistant
Director, in the event, a Departmental Promotion Committee had been constituted
in due time. In that view of the matter, it must be held that the State of Kerala
took a conscious decision to the effect that those who have been acting in a higher
post for a long time although on a temporary basis, but were qualified at the
time when they were so promoted and found to be eligible by the Departmental
Promotion Committee at a later date, should be promoted with retrospective
effect. Such exercise of power on the part of the State is not unknown in
service jurisprudence. Even assuming that such a power did not exist in Rule 31
of the Rules the same can be traced to Rule 39 of the Rules, as noted
hereinbefore." He further relied on A. Janardhana v. Union of India,
(1983) 3 SCC 601, where it was held as under:
avoiding any humanitarian approach to the problem, we shall strictly go by the
relevant rules and precedents and the impact of the Rules on the members of the
service and determine whether the impugned seniority lists is valid or not.
But, having done that we do propose to examine and expose an extremely
undesirable, unjust and inequitable situation emerging in service jurisprudence
from the precedents namely, that a person already rendering service as a promotee
has to go down below a person who comes into service decades after the promotee
enters the service and who may be a schoolian, if not in embryo, when the promotee
on being promoted on account of the exigencies of service as required by the
Government started rendering service. A time has come to recast, service
jurisprudence on more just and equitable foundation by examining all precedents
on the subject to retrieve this situation." We heard all the parties in
detail and we have also perused through all the materials on record before us.
We feel that, the appellants herein have a case and their arguments merit favourable
feel that the impugned judgment dated 26.11.2001 of the High Court has
correctly appreciated that vacancies arose in the year 1987-88, but have failed
to appreciate that these vacancies were filled by regularizing 124 persons who
were carrying on as Forest Rangers on an ad hoc basis. We also are of the view
that, if the orders of the High Court are to be given effect to, then 356
Deputy Forest Rangers would become entitled to promotion in excess of the
quota. It is well settled that promotion in excess of quota makes an employee
an ad hoc employee and seniority cannot be given to such employees on the basis
of ad hoc promotion. This was observed by this court in a series of cases. In
the case of Keshav Chandra Joshi & Ors v. Union of India & Ors, 1992
Supp.1 SCC 272, this Court observed that, "It is notorious that
confirmation of an employee in a substantive post would take place long years
after the retirement. An employee is entitled to be considered for promotion on
regular basis to a higher post if he/she is an approved probationer in the
substantive lower post. An officer appointed by promotion in accordance with
Rules and within quota and on declaration of probation is entitled to reckon
his seniority from the date of promotion and the entire length of service,
though initially temporary, shall be counted for seniority. Ad-hoc or
fortuitous appointments on a temporary or stop gap basis cannot be taken into
account for the purpose of seniority, even if the appointee was subsequently
qualified to hold the post on a regular basis. To give benefit of such service
would be contrary to equality enshrined in Article 14 read with Article 16(1)
of the Constitution as unequals would be treated as equals. When promotion is
out side the quota, the seniority would be reckoned from the date of the
vacancy within the quota, rendering the previous service fortuitous. The
previous promotion would be regular only from the date of the vacancy within
the quota and seniority shall be counted from that date and not from the date
of his earlier promotion or sub-sequent confirmation. In order to do justice to
the promotees it would not be proper to do injustice to the direct recruits.
The rule of quota being a statutory one it must be strictly implemented and it
is impermissible for the authorities concerned to deviate from the rule due to
administrative exigencies or expediency. The result of pushing down the promotees
appointed in excess of the quota may work out hardship but it is unavoidable
and any construction otherwise would be illegal, nullifying the force of
statutory rules and would offend Articles 14 and 16(1).
the rules must be carefully applied in such a manner as not to violate the
rules or equality assured under Article 14 of the Constitution. This Court
interpreted that equity is an integral part of Article 14. So every attempt
would be made to minimise, as far as possible, inequity, Disparity is inherent
in the system of working out integration of the employees drawn from different
sources, who have legitimate aspiration to reach higher echelons of service. A
feeling of hardship to one, or heart burning to either would be avoided. At the
same time equality is accorded to all the employees." In Sanjay Kumar Sinha
& Ors v. State of Bihar & Ors, (2004) 10 SCC 734, this court observed
view the first point regarding alleged non- availability of posts of ACFs for
appointment of promotees at the relevant time is sufficient to decide this
appeal. On the question of availability of posts the case of the appellants is
that posts were not available and in the absence of the posts no appointments could
be made. Still the respondents had gone ahead with the appointments of the promotees.
Such appointments are mere fortuitous and cannot confer the benefit of
seniority from the date of appointment. The first document relied upon in
support of this contention is a letter dated 23rd September, 1985 from the
Chief Conservator, Forests and Environment Department, Government of Bihar, Patna.
The letter directly deals with the question of promotion of Forest Range
Officer (FRO) to the post of Assistant Conservator of Forests (ACF). The letter
notes that under Rule 3 of the Bihar Forest Service Rules, at least 50% of the
total existing vacancies have to be filled by promotion.
goes on to add: "Presently there are 125 officers in the cadre in the
Bihar Forest Service, out of which 105 have been promoted from the post of
Range Officer and rest are appointed by way of direct recruitment."
to this letter as per the cadre strength of the posts of ACF in Bihar State
Forest Service, the promoted officers constituted 84%.
Chief Conservator of Forests expressed his view in the said letter that filling
such large number of posts by way of promotions affects the quality of service.
The Chief Conservator of Forests also notes that the State Service Commission
had already issued advertisement for filling 40 posts of ACFs by direct
recruitment. He has opined that in these circumstances it would not be proper
to fill up the posts of ACF by promotion. This letter highlights the imbalance
already existing in the service qua the posts of ACF so far as appointments of
direct recruitment and promotees are concerned."
clear from the admissions made on behalf of the respondents by way of
affidavits filed in judicial proceedings that sanctioned number of posts were
not available in the year 1987 when the respondents were promoted as ACFs,
rather the promotions were made against non-existing posts.
such promotions confer any right on the officers concerned particularly over
and above the other duly appointed officers in the service like the appellants?
In this connection we have to note that Rule 35 of the Bihar Forest Service
Rules provides that seniority of officers appointed to the service is to be
determined with reference to the date of their substantive appointment. In
order to become a member of the service the person concerned has to satisfy at
least two conditions - first, appointment must be in substantive capacity and
(2) the appointment has to be to the post in the service according to the Rules
and within the quota to a substantive vacancy."
in the case of D.Ganesh Rao Patnaik & Ors v. State of Jharkhand & Ors,
(2005) 8 SCC 454, this court opined that, ". that the appointment of the
contesting respondents was not only contrary to Rules but was fortuitous in
nature and they can get no advantage of such fortuitous appointment until a
substantive vacancy was available in their quota, which in fact became
available much later some time in the year 1993-94, which is long after the
appointment of the appellants. What is a fortuitous appointment has been
explained in a Constitution Bench decision of this Court in Rudra Kumar Sain v.
Union of India (2000) 8 SCC 25. After observing that the Rules in question did
not define the terms 'ad hoc', 'stopgap' and 'fortuitous', which are in
frequent use in service jurisprudence, the Court referred to several
dictionaries. The meaning given to the expression 'fortuitous' in Stroud's
Judicial Dictionary is 'accident or fortuitous casualty'. This should obviously
connote that if an appointment is made accidentally, because of a particular
emergent situation, such appointment obviously would not continue for a
reasonably long period. In Black's Law Dictionary the expression 'fortuitous'
means 'occurring by chance', 'a fortuitous event may be highly unfortunate'. It
thus indicates that it occurs only by chance or accident, which could not have
been reasonably foreseen. In Oxford
dictionary the meaning given to the word 'fortuitous' is - happening by
accident or chance rather than design. In our opinion it will not be proper to
hold that the promotion of the contesting respondents was fortuitous as
contended by learned counsel for the appellants. It cannot be said that the
contesting respondents were promoted by accident or by chance. Their promotion
order was passed as there were vacancies to the posts of Additional District
and Sessions Judges, though in the quota or direct recruits, but as no
recruitment from the said channel had been made for a long time and sufficient
number of candidates were not available, the vacancies were filled in by giving
promotion to members of Bihar Civil Service (Judicial Branch). If promotion
orders had not been passed and the posts had not been filled in, the judicial
work in the districts would have suffered. However, it is clear that having
regard to the various orders passed on the judicial side by the Patna High
Court and the legal position being well settled that the temporary posts have
also to be counted for determining the one-third quota of direct recruits, the
promotion given to the contesting respondents was not in accordance with law.
Instead of taking the harsh step of rescinding their order of promotion the Patna
High Court, on the administrative side, took the decision to treat them
promoted against subsequent quota of promotees.
the contesting respondents can under no circumstances claim seniority over the
appellants and the view to the contrary taken by the Jharkhand High Court on 29th August, 2002 on administrative side and also in
the judgment and order dated 1st April, 2003,
which is the subject-matter of challenge in the present appeal, is wholly
erroneous in law." We also observe that, the High Court has granted
seniority without even reference to Seniority Rules of 8, and in particular the
proviso thereto, has not been taken into consideration. The said rules have
overriding effect and hence seniority has to be consistent with the Rules. By
virtue of Rule 8, Seniority can be given only from 'the date of substantive
appointment'. In this case, the promotees were appointed on 17.07.1991 and
therefore cannot be given seniority over the appellants who were substantively
appointed prior in point of time i.e. in 1990. It is specifically indicated in
proviso to Rule 8 that, "Where appointments from any source fall short of
the prescribed quota and appointment against such unfilled vacancies are made
in subsequent year or years, the persons so appointed shall not get seniority
of any earlier year, but shall get seniority of the year in which their
appointments are made." These rules were in force in 1991 when the Deputy
Forest Rangers were promoted to the post of Forest Rangers on 17.07.1991. Also
it is well settled that seniority has to be decided on the basis of Rules in
force on the date of appointment. It was observed by this court in the case of
State of Karnataka & Ors v. C. Lalitha, (2006) 2 SCC 747, that,
"Service jurisprudence evolved by this Court from time to time postulates
that all persons similarly situated should be treated similarly. Only because
one person has approached the court that would not mean that persons similarly
situated should be treated differently. It is furthermore well- settled that
the question of seniority should be governed by the rules. It may be true that
this Court took notice of the subsequent events, namely, that in the meantime
she had also been promoted as Assistant Commissioner which was a Category I
Post but the direction to create a supernumerary post to adjust her must be
held to have been issued only with a view to accommodate her therein as
otherwise she might have been reverted and not for the purpose of conferring a
benefit to which she was not otherwise entitled to." It was also observed
in the case of Union of India v. S.S.Uppal & Anr., (1996) 2 SCC 168 that,"
We are of the
view that the question of seniority of Uppal, the respondent No. 1, has to be
determined by the rules in force on the date of his appointment to IAS. The
fixation of seniority in the IAS follows appointment to the service. The Year
of Allotment in the IAS will have to be determined according to the provisions
of seniority rules which are in force at the time of his appointment. The date
of occurrence of vacancy has really no relevance for the purpose of fixation of
seniority in the IAS. The fixation of seniority is done only after an officer
is appointed to IAS. The Central Government is competent to amend the seniority
rules from time to time keeping in view the exigencies of administration."
Thus we feel that the High Court order granting promotees seniority from
1987-88 suffers from infirmity and is liable to be set aside.
also of the view that no retrospective promotion or seniority can be granted
from a date when an employee has not even been borne in the cadre so as to be
adversely appointed validly in the meantime, as decided by this court in the
case of K.C. Joshi & others vs. Union of India, 1992 Suppl (1) SCC 272 held
that when promotion is outside the quota, seniority would be reckoned from the
date of the vacancy within the quota rendering the previous service fortuitous.
The previous promotion would be regular only from the date of the vacancy
within the quota and seniority shall be counted from that date and not from the
date of his earlier promotion or subsequent confirmation. In order to do
justice to the promotees, it would not be proper to do injustice to the direct
recruits. The rule of quota being a statutory one, it must be strictly
implemented and it is impermissible for the authorities concerned to deviate
from the rule due to administrative exigencies or expediency. The result of
pushing down the promotees appointed in excess of the quota may work out
hardship, but it is unavoidable and any construction otherwise would be illegal,
nullifying the force of statutory rules and would offend Articles 14 and 16(1)
of the Constitution.
Court has consistently held 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 borne in the cadre particularly when this would adversely affect
the direct recruits who have been appointed validly in the meantime. In, State
of Bihar & Ors v. Akhouri Sachidananda Nath & Ors, 1991 Suppl. (1) SCC
334, this court observed that,"
In the instant
case, the promotee respondents 6 to 23 were not born in the cadre of Assistant
Engineer in the Bihar Engineering Service, Class II at the time when the
respondents 1 to 5 were directly recruited to the post of Assistant Engineer
and as such they cannot be given seniority in the service of Assistant
Engineers over the respondents 1 to 5. It is well settled that no person can be
promoted with retrospective effect from a date when he was not born in the
cadre so as to adversely affect others. It is well settled by several decisions
of this Court that amongst members of the same grade seniority is reckoned from
the date of their initial entry into the service. In other words, seniority
inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class II
will be considered from the date of the length of service rendered as Assistant
Engineers. This being the position in law the respondents 6 to 23 can not be
made senior to the respondents 1 to 5 by the impugned Government orders as they
entered into the said Service by promotion after the respondents 1 to 5 were
directly recruited in the quota of direct recruits. The judgment of the High
Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is
unexceptionable." This court in Vinodanand Yadav & Ors v. State of
Bihar & Ors, 1994 Suppl. (2) SCC 44, held:
an issue regarding the interse seniority among the direct recruits and promotees
the Court applying the ratio of State of Bihar v. Akhouri Sachindranath held that the appellants who were direct
recruits shall be considered senior over the promotees not borne on the cadre
when the direct recruits were appointed in service. Hence the gradation list
drawn under which promotees where given seniority over direct recruits could
not be sustained and was thereby set aside".
High Court, in the impugned judgment dated 26.11.2001 has proceeded on the
basis that vacancies arose in 1987-88 and, therefore, should be given
said submission, in our opinion, has no force and import.
view, the date on which vacancies arose cannot without more be made a basis of
giving retrospective promotion and seniority. In Jagdish Ch. Patnaik & Ors
v. State of Orissa & Ors, 1998(4) SCC 456, this Court observed:
question for consideration is whether the year in which the vacancy accrues can
have any relevance for the purpose of determining the seniority irrespective of
the fact when the persons are recruited? Mr. Banerjee's contention on this
score is that since the appellant was recruited to the cadre of Assistant
Engineer in respect of the vacancies that arose in the year 1978 though in fact
the letter of appointment was issued only in March 1980, he should be treated
to be a recruit of the year 1978 and as such would be senior to the promotees
of the years 1979 and 1980 and would be junior to the promotees of the year
1978. According to the learned Counsel since the process of recruitment takes a
fairly long period as the Public Service Commission invites application,
interviews and finally selects them whereupon the Government takes the final decison,
it would be illogical to ignore the year in which the vacancy arose and against
which the recruitment has been made. There is no dispute that there will be
some time lag between the year when the vacancy accrues and the year when the
final recruitment is made for complying with the procedure prescribed but that
would not give a handle to the Court to include something which is not there in
the Rules of Seniority under Rule 26. Under Rule 26 the year in which vacancy
arose and against which vacancy the recruitment has been made is not at all to
be looked into for determination of the inter se seniority between direct
recruits and the promotees. It merely states that during the calendar year
direct recruits to the cadre of Assistant Engineer would be junior to the promotee
recruits to the said cadre. It is not possible for the Court to import
something which is not there in Rule 26 and thereby legislate a new Rule of
Seniority. We are, therefore, not in a position to agree with the submission of
Mr. Banerjee, the learned senior counsel appearing for the appellants on this
instant case, the High Court has relied upon the letter of the Public Service
Commission dated 06.07.1991 to come to the conclusion that the PSC recommended
the appointments to be given to the promotees from the date on which the
vacancy arose. Even apart from the fact that it has now been conclusively
established that the vacancy position indicated to the PSC was not correct,
there is nothing in the said letter of the PSC which would lead to the
conclusion that it had recommended that appointment should date back to the
date of vacancies. All that the letter indicates is that the Commission had
considered the fitness and suitability of the candidates year by year taking
into consideration the vacancies that had allegedly arisen in the concerned
is only an exercise for the purpose of arriving at the name of the employees to
be recommended which had nothing to do with the date on which the appointment
was to be given. The reliance placed by the High Court on the U.P. promotion by
selection in consultation with the Public Service Commission (Procedure) Rules,
1970 and, in particular, Rules 13 and 21 also does not mandate that the
appointment has to be made on the date on which the vacancy arose. It confirms
that while selecting the persons the Government has to send requisition
year-wise and the PSC to make its recommendation year-wise.
this does not lead to a conclusion as to the date on which appointment should
alternative argument was made by Mr. Gupta to the effect that even if the High
Court was of the opinion that the seniority and promotion should be re-worked
the same should have referred back to the PSC to ascertain who would be the
relevant persons entitled to promotion. The High Court did not accept that PSC's
recommendation in its entirety since in its view vacancies only arose in
1987-88 and not in 1979-80 as indicated by the PSC.
in the second impugned order dated 12.04.2004, 45 persons were directed to be
promoted without taking into consideration their relative position in the list
prepared by the PSC. By not referring the matter to the PSC, incorrect persons
were chosen by the High Court for the purpose of promotion. This submission
was, however, made by learned senior counsel without prejudice to the
submission that the entire basis for directing retrospective promotion and
seniority was erroneous and there were no vacancies at all.
second impugned order dated 12.04.2004 is further vitiated for the following
seniority list under challenge in the second writ petition was the seniority
list of the Uttaranchal State Government of 2002 and such challenge could not
have been made before the Lucknow Bench of the Allahabad High Court.
Parties: None of
the direct recruits who would be directly affected by order cannot were made
parties to the writ petition. Therefore the High Court did not have the benefit
of competing arguments in the matter. Even though, the Principal Secretary of
the State of Uttaranchal was made a party, the said party
was never served. The only respondent which was heard was the State of U.P.
which had no stake in the matter at all since all of the writ petitioners
before the Lucknow Bench of the Allahabad High Court where employees of the
State of Uttaranchal on the relevant date. It is, therefore, evident that the
relevant material was not placed before the Allahabad High Court for the
purpose of deciding the writ petition. Accordingly, the permission had to be
taken from this Court by the present appellants to prefer the SLPs.
therefore, have no hesitation in setting aside the final judgment and order
dated 12.04.2004 passed by the High Court of Judicature at Allahabad, Lucknow
Bench in Writ Petition No. 366 SB of 2002 whereby the High Court allowed the
writ petition filed by C.B. Chhimwal and allow the Civil Appeal No. of 2006
arising out of SLP (C) No. 7375 of 2005.
we allow the Civil Appeal No. of 2006 arising out of SLP (C) No. 1860 of 2006
and set aside the impugned judgment and order dated 26.11.2001 passed in Writ
Petition No. 610(S/B) of 1996 by the High Court of Allahabad at Lucknow Bench.
we are making it clear that this judgment of ours will not adversely affect the
benefits of the order which have been enjoyed by any of the promotees who have
retired from service. The division of seniority list, however, has serious and
lasting consequences insofar as the appellants are concerned which of crucial
importance as far as the promotional prospects of the appellants are concerned.
therefore, direct the State of Uttaranchal
through its Principal Secretary (Forest) Dehradun, Uttaranchal to revise the seniority list of direct recruits
in line with the observations and conclusions made in this judgment by us
within 2 months from the date of receipt of this judgment. No costs.