TMI Blog2021 (10) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... said purpose - one selection occurring in Rule 8(3) of Rules,1991 means in the same year. If appointments are made to a post by direct recruitment and by promotion as per their quota in the same recruitment year , then their inter se seniority is to be determined applying the provisions of Rule 8(3) of Rules, 1991. This Court in the case of RAVINDRA NATH PANDEY S/O B.N. LAL PANDEY VERSUS STATE OF U.P. THRU PRINCIPAL SECRETARY [ 2014 (9) TMI 1245 - ALLAHABAD HIGH COURT] has held that Sub-rule 3 of Rule 8 of Rules, 1991, should be construed in such a manner so that rule does not become inoperative. It has been held that phrase one selection occurring in Rule 8(3) should be construed to mean the selection made in the same year of recruitment and seniority of all persons who are appointed by direct recruitment or promotion in the same recruitment year, should be determined as per Rule 8(3) of Rules, 1991. In the present case, final selection and appointments to the post of Assistant Commissioner, Commercial Tax through direct recruitment (petitioners) and promotion (private respondents) was concluded in the year of recruitment 2008-09 i.e. 01.07.2008 to 30.06.2009. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made through direct recruitment and by promotion in the recruitment year 2008-09, their seniority was rightly determined applying the principle of Rule 8(3) while publishing the seniority list dated 09.08.2012. Rule 8(1) cannot be applied for determining inter se seniority of direct recruits and promotees, if the selection and appointments are made in the same recruitment year through direct recruitment and promotion. Thus, it is held that the impugned seniority list is correctly prepared and settled seniority position should not and cannot be reopened after 8- 9 years. Petition dismissed. - Service Single No. - 12020 of 2020, 12834 of 2020, 17765 of 2020, - - - Dated:- 20-10-2021 - Hon'ble Dinesh Kumar Singh J. For the Petitioner : Vijay Kumar Srivastava,Shailendra Kumar Dubey, Ajay Pratap Singh For the Respondent : C.S.C.,Alok Saxena,Dilip Mani,Girdhari Lal Shukla,Shobhit Mohan Shukla,Vijay Dixit, Alok Saxena,Girdhari Lal Shukla,Vijay Dixit, C.S.C.,Sanket Saxena,Vijay Dixit ORDER HON'BLE DINESH KUMAR SINGH J. 1. WRIT PETITIONS: These petitions have been filed for quashing the seniority list dated 09.08.2012 issued by the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the post of Deputy Commissioner, Commercial Tax by means of a common order in the year 2014 based on seniority list dated 09.08.2012. (vi) Petitioner No.8 submitted representation dated 03.08.2019 against the seniority list dated 09.08.2012. Respondent No.1 considered the representation and rejected the same vide impugned order dated 20.03.2020 stating that the seniority list dated 09.08.2012 was prepared in accordance with law. 3. RELEVANT STATUTORY PROVISIONS: - In order to regulate the services of officers of Sales Tax Department, service rules named as U.P. Sales Tax Service Rules, 1983 were promulgated which consisted of three posts namely, Sales Tax Officer, Assistant Commissioner and Deputy Commissioner. (i) Rule 5 of Rules, 1983 provides for source of recruitment to the various categories of post in the services. For convenience Rule 5 is extracted hereunder: - 5. Source of Recruitment: - (1) Recruitment to the various categories of posts in the Service shall be made from the sources indicated against each: (a) Sales Tax Officer. - (i) By direct recruitment on the result of competitive examination conducted by the Commission, and (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment and by promotion, names shall be arranged in accordance with the list prepared under Rule 18. (iv) Rule 22 of the Rules, 1983 relates to general rule of seniority which provides that the seniority of persons in any category of post shall be determined from the date of order of substantive appointment. Rule 22 of the Rules, 1983 is reproduced hereunder: - 22. Seniority. - (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by 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 issue of the order: Provided further that, if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of Rule 19. (2) The senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule7 accordingly as the promotion are to be made from as 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 -a-vis direct recruits shall be determined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, it is submitted that selection of the petitioners and the private respondents are different selections and their appointments to the post of Assistant Commissioner, Commercial Tax were not as a result of same selection, therefore, Rule 8(3) should not have been applied for determining the seniority between the petitioners (direct recruits) and the promotees (private respondents). Seniority list ought to have been prepared as per Rule 8(1) from the respective dates of substantive appointment. (ii) It has been further submitted that private respondents (promotee) have been made senior to the petitioners in the seniority list dated 09.08.2012 though they were promoted after the appointments of the petitioners. It is submitted that the promotee officers have been given seniority from the date when they were not even born in the cadre of Assisstant Commissioner, Commercial Tax. (iii) It has been further submitted by learned counsel for the petitioners that for making another selection for the post of Assistant Commissioner, Commercial Tax through direct recruitment, an advertisement was issued in 2007, which got completed in the year 2010. Persons selected and ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seniority list dated 09.08.2012 as they were appointed on the post of Assistant Commissioner Commercial Tax earlier than the private respondents. It has been, therefore, submitted that the impugned seniority list dated 09.08.2012 as well as order dated 20.03.2020 are liable to be quashed. (vii) On the other hand, Mr. Sandeep Dixit, learned Senior Advocate assisted by Mr. Vijay Dixit for private respondents and Mr. Ranvijay Singh, Ld. Addl. Chief Standing Counsel appearing for State have submitted that challenge in the writ petition is seniority list of Assistant Commissioners, Commercial Tax dated 09.08.2012 and, the writ petition has been filed after a delay of about 9 years. Aforesaid seniority list was not challenged in all these years. The said seniority list was acted upon inasmuch as the promotions were made to the post of Deputy Commissioner, Commercial Tax from the same seniority list in the year 2014. Belated challenge by the petitioners to the long-standing seniority list dated 09.08.2012 is to be rejected as the petition is barred by gross delay and latches. (viii) It has been further submitted that the representation of the petitioner No.8 on which the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laid down by the Division Bench of this Court in the case of Ravindra Nath Pandey (supra) which is of equal strength and, it appears that the judgment passed in the case Shanti Shekhar Singh (supra) is per incuriam. (xiii) Mr. Shobhit Mohan Shukla, learned counsel appearing for interveners has submitted that the promotions were made from the same seniority list dated 09.08.2012 to the post of Deputy Commissioner and, after a gap of around 9 years when promotion to the next higher post of Joint Commissioner is due and in process, the petitioners have come to this Court assailing the said seniority list. He has further submitted that applicants are much higher in gradation list than the petitioners. Therefore, even if the writ petitions are allowed, the applicants would remain above the petitioners in the gradation list. However, on account of filing of the present writ petitions, promotion of the applicants in pursuance to the recommendation of the Departmental Promotion Committee is held up. Mr. Shobhit Mohan Shukla, learned counsel has submitted that the Departmental Promotion Committee has considered the promotion against 19 posts of Joint Commissioner which are exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotees and direct recruits for the recruitment year 2008- 09 were placed in ratio of 1:1. (v) The issue regarding what is the import and purport of phrase one selection occurring in sub-rule (3) has to be dealt with first before proceeding further in the matter. Ordinarily, appointments through direct recruit and promotion to a post are not made by one selection inasmuch as direct recruitment to the post of Assistant Commissioner in the present case is made by the Uttar Pradesh Public Service Commission through competitive examination whereas promotion is made by the Departmental Promotion Committee constituted for the said purpose. (vi) This Court in the case of Ravindra Nath Pandey vs State of U.P.: 2014(6) AWC 6389 has held that Sub-rule 3 of Rule 8 of Rules, 1991, should be construed in such a manner so that rule does not become inoperative. It has been held that phrase one selection occurring in Rule 8(3) should be construed to mean the selection made in the same year of recruitment and seniority of all persons who are appointed by direct recruitment or promotion in the same recruitment year, should be determined as per Rule 8(3) of Rules, 1991. (vii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to Rule 8(3) can only mean selection in the same year Para 9 of the aforesaid judgment which is extracted hereunder:- 9. Now coming to the validity of the rejection order dated 18.5.2006 we find that the source of recruitment on the post of State Radio Officer is promotion. Direct recruitment has been permitted as an alternative in the event no eligible person is available for promotion. Nevertheless, considering the fact that both direct recruitment and promotion to the post in question was made in the same recruitment year, a combined list ought to have been prepared as per the said provisions of Rule 16, 17 and 18 of the Rules 1979 wherein the promotee officer should have been placed first. As the source of recruitment under Rule 5 (iii) is promotion, therefore, the promotee officer ought to have been placed above for this reason also. On the same analogy a combined list ought to have been prepared under Rules 16 and 17 and based thereon the combined appointment orders ought to have been issued placing the names in the same order as they figure in the seniority list prepared under Rules 16 and 17, but it does not appear to have been done. Even under Rule 8(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidates. The reserved candidates even if they are not available, it is settled law that unless de reservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder cadre or by transfer. So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance a hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1984, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So, each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment. (Emphasis Supplied) (xiii) Recruitment means appointment after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 score. (xv) On commencement of the selection/recruitment process, a candidate does not get recruited to the service, only on completion of selection/recruitment process a candidate gets selected for appointment. Under the service jurisprudence, seniority cannot be claimed from a date when an incumbent is yet to be born ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Arunachal Pradesh [ Nani Sha v. State of Arunachal Pradesh , (2007) 15 SCC 406 : (2010) 1 SCC (L S) 719] ]. Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime. (xvi) If appointments through process of direct recruitment and promotion are made to a post in accordance with quota prescribed under the relevant rules in 12 months commencing from 1st July to 30th June, then inter se seniority of such direct recruitments and promotees is to be determined applying the principles of Rule 8(3) of 1991 Rules. In the present case, final selection and appointments to the post of Assistant Commissioner, Commercial Tax through direct recruitment (petitioners) and promotion (private respondents) was concluded in the year of recruitment 2008-09 i.e. 01.07.2008 to 30.06.2009. The petitioners were issued appointment lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy unless rules made subsequently have been expressly given retrospective effect. Since Amendment to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force. II. Where for reasons beyond control, the DPC not be held in a year, even though the vacancies arose during that year, the first DPC that meets thereafter should follow the procedure of determination of actual number of regular vacancies that arose in each of the previous year immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately and consider the officers who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. After considering the eligibility list the sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was prepared as per provisions of Rule 8(1) of the 1991 Rules has been upheld by this Court in the said judgment in the case of Shanti Shekhar Singh (supra) and the Supreme court has dismissed the S.L.P., the impugned seniority list dated 09.08.2012 as well as order dated 20.03.2020 are untenable and liable to be quashed and the Department should be directed to prepare the seniority list in accordance with Rule 8(1) of Rules, 1991 inasmuch as in the same Department two seniority list applying the different provisions of Rules, 1991 should not exist. (xx) Thus, the petitioners did not have any grievance till the Supreme Court dismissed the S.L.P. against the judgment and order dated 04.05.2017 passed by the Division Bench in the case of Shanti Shekhar Singh (supra) . Once the S.L.P. got dismissed, one of the petitioners filed the representation against the seniority list dated 09.08.2012, which came to be rejected on 20.03.2020. This Court did not take note of the judgment in the case of Ravindra Nath Pandey (supra) , which is of co-equal strength in its judgment in the case of in the case of Shanti Shekhar Singh (supra) . There can be no scintilla of doubt that an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners got rejected vide impugned order dated 20.03.2020? It is well settled law that a party does not get cause of action to get a dispute reopened, which is finally settled between the parties because of change of law or decision of the Court. (xxiii) In the present case, impugned seniority list dated 09.08.2012 remained unchallenged for 9 long years. Promotions were made in the year 2014 based on this seniority list to the post of Dy Commissioner, Commercial Tax without any demur by the petitioners, therefore, I am of the view that the petitioners do not get a cause of action to raise the dispute against the seniority list dated 09.08.2012 in the year 2020 because of the judgment in the case of Shanti Shekhar Singh (supra) . (xxiv) In number of decisions, it has been held that delay and latches have to be seen from the original cause of action and not from the date of representation or from the decision on the representation, if any e.g; (i) Union of India Ors vs M.K. Sarkar: (2010) 2 SCC 59; (para 15 16) and; (ii) Union of India Ors vs C.Girija Ors: (2019) 15 SCC 633; (para 16 20 (xxv) If the petitioners were aggrieved by the seniority list dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, AIR 1992 SC 1414; (vi) The Ramjas Foundation Ors vs Union of India Ors: AIR 1993 SC 852; (vii) Ram Chand Vs Union of India : (1994) 1 SCC 852 (viii) State of Maharashtra vs Digambar, AIR 1995 SC 1991; (ix) Municipal Corporation of Greater Bombay vs Industrial (Development Investment Co. (P) Ltd. Ors,, (1996) 11 SCC 501; (x) Padma vs Dy Secy. To the Govt. of TamilNadu (1997) 2 SCC 627; (xi) Hindustan Petrolium Corp. Ltd., vs. Dolly Das: (1999) 4 SCC 450; (xii) Life Insurance Corporation of India vs Jyotish Chandra Biswas: (2000) 6 SCC 562; (xiii) L. Muthu Kumar Anr vs State of Tamil Nadu Ors: (2000) 7 SCC 618; (xiv) Municipal Council, Ahmadnagar Anr vs Shah Hyder Beig Ors AIR 2000 SC 671; and (xv) Inder Jit Gupta vs Union of India Ors: (2001) 6 SCC 637] 6. CONCLUSIONS: - (a) In view of the aforesaid discussion, it is held that if the appointment to the post of Assistant Commissioner Commercial Tax is made through direct recruitment and promotion in the same year of recruitment, their seniority must be determined applying the provisions of Rule 8(3) of the Rules, 1991. (b) In the present case, since the appointment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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