TMI Blog2011 (2) TMI 1510X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor. It reads thus : 15. Procedure for direct recruitment to the posts of Deputy Jailor, Assistant Jailor.--(1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission. (3) After the results of the written examination have been received and tabulated, the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subordinate Services Selection Commission for direct recruitment to all Group `C' posts in the State of U.P. The 1988 Act came into force on February 15, 1988. 6. On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone. 7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987, the UPPSC conducted the preliminary examinations on September 24, 1989. 8. On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a competitive examination, `U.P. Karapal (Deputy Jailor) Examination, 1990' shall be held. The examination was held on due date and after holding oral interview, the Selection Commission sent a select list to the State Government in 1991 for issuance of appointment letters. 9. On November 23, 1991, the State Government issued appointment letters to the candidates selected by the Selection Commission. The present appellants in Civil Appeal No. 9906 of 2003 and Civil Appeal No. 9908 of 2003 were amongst those who were appointed by the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995 came to be challenged before Allahabad High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138/2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on December 2, 2002 and the High Court directed the State of Uttar Pradesh and the Director General (Prisons), Lucknow to treat the appointees of 1994 senior to 1991 appointees. The contention raised by the writ petitioner (first respondent herein) before the High Court was that in view of the second proviso to rule 5 of 1991 Rules, the Deputy Jailors who were selected in the selection which commenced in 1987 must be treated senior to those selected pursuant to the selection that commenced in 1990. The Division Bench agreed with this contention and held as follows: .........In our opinion the correct interpretation of the proviso to Rule 5 of the U.P. Govt. Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which existed in 1990. In our opinion the petitioner and others similarly situate should not suffer, for no fault of theirs. 13. Being not satisfied with the judgment of the High Court dated December 2, 2002, three appeals, by special leave, have been filed, one by the State of Uttar Pradesh and the other two by 1991 appointees. 14. We have heard M/s. P.N. Mishra, Vijay Hansaria and Subodh Markandey, senior counsel for the appellants and Shri Pramod Swaroop, senior counsel for Respondent No. 1. On behalf of the appellants, it is urged that rule 5 of the 1991 Rules has no application as it is applicable where the service rules provide for appointment by direct recruitment only. Since the posts of Deputy Jailor, as per 1980 Rules, are to be filled by direct recruitment as well as by promotion, the mode and manner of determination of seniority provided in rule 5 cannot be applied and instead rule 8 of the 1991 Rules would be applicable for the purposes of determination of seniority. 15. Learned senior counsel for the appellants submitted in the alternative that even if rule 5 of the 1991 Rules is held to be applicable, second proviso appended to rule 5 does not contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (1990) 2 SCC 669 (ii) State of U.P. v. Rafiquddin Ors. 1987 (Suppl.) SCC 401 ; (iii) Surendra Narain Singh Ors. v. State of Bihar Ors. (1998) 5 SCC 246 and (iv) Balwant Singh Narw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by promotion. It is only where service rules in the State of U.P. provide for appointments by direct recruitment alone that rule 5 of 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon second proviso to rule 5 of the 1991 Rules for determination of inter se seniority amongst 1991 and 1994 appointees is, thus, misplaced. The High Court fell into grave error in not appreciating that rule 5 of the 1991 Rules operates where service rules provide for appointments by direct recruitment only. Rule 6 and rule 7 of the 1991 Rules also have no application as these rules provide for determination of seniority where appointments are made by promotion only from a single feeding cadre or only from several feeding cadres. These appeals are not concerned with the determination of inter se seniority between the promotees. Rule 8 of the 1991 Rules makes a provision for determination of seniority where according to service rules appointments are made both by promotion and by direct recruitment. The marginal note of rule 8 `seniority where appointments by promotion and direct recruitment' and the body of sub-rule (1) of rule 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Patnaik, while construing the word `recruited' occurring in Orissa Service of 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 issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Rath, this Court followed Jagdish Ch. Patnaik 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' Association 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. (1991 (suppl.) 1 SCC 334 and Jagdish Ch. Patnaik. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time. 31. In light of the legal position summed up above and rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies. The 1991 appointees having been appointed substantively much prior in point of time, they are entitled to rank senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from March 20, 1991. The 1991 Rules were made applicable to all government servants whose recruitments were governed by rules framed under Article 309 of the Constitution and were given overriding effect over all other service rules. Both the appellants and respondent no. 1 were appointed after the 1991 Rules came into force. Hence, both sides agreed that the question of their inter se seniority can be determined only under the provisions of the 1991 Rules. The High Court on application of the (second) proviso to rule 5 of the 1991 Rules held that respondent no.1 would rank senior to the appellants, observing that the candidates who were selected in the selection process that commenced in 1987 should rank senior to those selected in the selection process commencing much later in 1990. By a process of semantic reasoning, the High Court tried to make a distinction between `selection' and `appointment' and held that under the proviso to rule 5 what was determinative was not appointment but selection. Proceeding on that basis the High Court held that though the appellants were appointed earlier (in 1991) than respondent no.1 who was appointed later (in 1994), nevertheless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 Rules. An attempt to fit those facts into any of the provisions of the 1991 Rules would, to my mind, amount to doing violence to the rules. The 1991 Rules were not made exclusively for the Jail Executive Subordinate Service (to which the post of Deputy Jailer belongs) but those rules apply to all government servants for whose recruitments rules are framed under the proviso to Article 309 of the Constitution. In making rules of general application it is not possible to take into account a situation that is way out of the normal. In the main judgment, the facts of the case are taken note of in detail but it would be useful to briefly recapitulate them here. Before November 25, 1989, the statutory agency to make the selection for appointment to the post of Deputy Jailer was the Uttar Pradesh Public Service Commission (hereinafter UPPSC ). On December 26, 1987 the UPPSC issued an advertisement for filling up a large number of vacancies in different posts, including 144 vacancies in the post of Deputy Jailers. It held the main examination of the candidates applying in response to the advertisement in 1991 and finally declared the result on July 27, 1993. On the basis of the list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 27, 1990; even in the case of respondent no. 1 it is not stated clearly and definitely that he was unable to apply in response to the advertisement of October 27, 1990, issued by the Selection Commission because by that time he had become over age. Be that as it may, this aspect of the matter is only incidental and it is recalled simply to point out that it is not open to the respondents to contend that the position in which they are placed is the result of circumstances over which they had no control and to make an appeal in the name of equity. The purpose in recapitulating the facts of the case is to show that the situation arising from the two sets of appointments and the resultant dispute of seniority is highly anomalous. It should be accepted as such instead of trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules were not designed to resolve a dispute of seniority arising from such facts. If I put on the cap of the rule maker I cannot imagine myself conceiving of a fact situation of this kind and making a provision to meet the contingency. Now, in case the seniority between the appellants and the first respondent is to be determined outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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