Pawan Pratap Singh
& Ors. Vs. Reevan Singh & Ors.
JUDGMENT
R.M. LODHA, J.
1.
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.—
a. 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.
b. No candidate shall be
admitted to the examination unless he holds a certificate of admission issued
by the Commission.
c. 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.
d. 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--
a. the inter se seniority
of persons directly appointed to the service shall be the same as determined at
the time of selection.
b. 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 4 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.............."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 sub-rules, 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-`-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 Recruitsand 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; 8
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 9 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 1 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, 1 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 4562 (1999) 9 SCC 5963 (2006)
10 SCC 3464 (2007) 1 SCC 6835 (1997) 3 SCC 261 1 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.
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 6697
1987 (Suppl.) SCC 401 8 (1998) 5 SCC 2469 (2008) 7 SCC 728 1
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
there from 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. 1 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 1 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) 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 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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