TMI Blog2007 (5) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, their seniority inter se shall be determined according to the order in which their names appear in the order of appointment: Provided that-- (1) The inter se seniority of direct recruits selected in one batch shall be determined according to their merit at the selection but a candidate may lose his seniority if he fails to join without sufficient reasons when appointment is offered to him and the decision of the Governor as to the sufficiency of the reasons shall be final; (2) The inter se seniority of the promotees, selected at one selection, relating to one particular year of recruitment shall be determined according to their seniority in the post from which they are promoted;.... (5) Vacancies are required to be filled on every occasion both by direct recruitment and promotion and the inter se seniority of persons appointed by promotion and direct recruitment against the vacancies of a particular year, shall be determined by arranging their names alternatively, the first name being of the person appointed by promotion, and placing the names of the remaining persons below en bloc. Explanation.-- A direct recruit will not be entitled to seniority of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of five years. It expired on 5.08.1978. It appears that a GO bearing No. 2003 was issued by the Government of U.P. on 20.08.1977 providing for reservation to the extent of 8% only which was eventually reduced to 2% in Class - II and Class - III Services of the State Government. 7. A new set of Rules known as U.P. Non Technical (Class - II/ Group B Services) Appointment of Demobilized Officers Rules, 1980 (for short the 1980 Rules ) was made by the State on or about 19.08.1980 for the purpose of regularizing the appointments of demobilized officers whose selection process had been commenced or concluded under the 1973 Rules but appointments had not been made before the expiry thereof. Indisputably, the 1980 Rules do not contain any provision in regard to reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. 8. Interpretation and/ or application of the said Rules and the precedents operating in the field are required to be considered in this case in the aforementioned backdrop. A process of selection started in the case of the respondent in the year 1973 in the Engineering Corps of the Indian Army. He was selected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in 1971 and posted in 1973. In view of Rule 6, he would be deemed to have entered service at the second opportunity of competing for recruitment and the entire period from the date of assumed entry in the service up to his recruitment in 1973 shall be taken into account for the purpose of computing seniority and pay. If, however, a candidate does not avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will not be taken into account for the purpose of computing the seniority. Rule 6 should be given a reasonable interpretation.... Yet again, the question in regard to determination of seniority of the Deputy Superintendents of Police in terms of Rule 21 of the 1942 Rules came up for consideration before this Court in Rana Randhir Singh and Ors. v. State of U.P. and Ors. AIR1989SC218 . 10. With a view to meet the requirements of the judgment of this Court in Narendra Nath Pande (supra), the 1980 Rules were amended in terms whereof Rule 5 was applied limiting to three years' maximum seniority over and above the seniority give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1980 Rules have a limited application insofar as the same sought to protect only those officers in whose cases the recruitment process started in the year 1973 and were not applicable in the cases of those who were recruited after it came into force. (iii) Whereas the 1973 Rules provided for reservation, the 1980 Rules did not provide for any, save and except to a limited extent and, thus, the same could not be applied in the case of the respondent. (iv) Respondent was recruited against the vacancies which arose in the year 1984 only in the year 1988 and, thus, having been appointed in the State's service only on 17.03.1979, the 1980 Rules or the 1973 Rules could not have any application in the case of the respondent. (v) The Seniority was given only to the Emergency Commissioner officers. (vi) In view of the decision of this Court in Ram Janam Singh v. State of U.P. and Anr. (1994)ILLJ901SC , wherein law has been laid down as to who would get the benefit of the 1980 Rules, the impugned judgment must be held to be bad in law. 14. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the respondent, on the other, submitted: (i) Respondent was selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s still remain unfilled, the same shall then be made available to other emergency commissioned officers and short service commissioned officers. Explanation.--The notification of vacancies or the advertisement thereof by the Commission shall, among others, be a process of recruitment within the meaning of this rule. 16. Rule 5 of the 1980 Rules provided for seniority and pay of persons appointed against the vacancies referred to in the 1973 Rules, the relevant portion whereof reads, thus: 5. Seniority and pay.--(1) Seniority and pay of persons appointed against the vacancies referred to in the said rules shall be determined on the assumption that they entered the service concerned at the second opportunity of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination:.... 17. Seniority may not be a fundamental right, but is a civil right. [See Indu Shekhar Singh and Ors. v. State of U.P. and Ors. AIR2006SC2432 , Bimlesh Tanwar v. State of Haryana and Ors.: [2003]2SCR757 and Prafulla Kumar Das v. State of Orissa: AIR2003SC4506 ] Infringement of the said right would be permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts were accrued to him, in our opinion, has no merit. The 1980 Rules, as noticed hereinbefore, only have a limited operation by regularizing appointments of demobilized officers whose selection process had been commenced or concluded under the 1973 Rules but appointments had not been made before the expiry thereof. There was no provision for reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. 21. The 1973 Rules was a temporary statute. It died its natural death on expiry thereof. The 1980 Rules does not contain any repeal and saving clause. The provisions of the relevant provisions of the General Clauses Act will, thus, have no application. Once a statute expires by efflux of time, the question of giving effect to a right arising thereunder may not arise. In any event, in this case, no such right accrued to the respondent. Reservation to the extent of 2% might have been fixed by reason of a Government Order issued in the year 1977 but the same had nothing to do with the 1973 Rules or with the 1980 Rules. Provision for reservation made in general by the State in exercise of its executive power could not have conferred a benefit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een into force, by reason of Rule 5 of the 1980 Rules, the 1973 Rules must be deemed to be in operation till then. The decision of this Court in the fact of that case may be correct but then it is distinguishable in the sense that in the instant case the respondent had joined Commissioned Service only in the year 1979. Whether he was selected as a commissioned officer or whether he had undergone pre-commissioned training is not relevant for applicability of the 1980 Rules. What was relevant is as to from which date he became a Commissioned Officer. If he became a Commissioned Officer only after 5.08.1978, i.e., after the expiry of the 1973 Rules, the question of his getting any benefit under the 1973 Rules would not arise. The same principle has been reiterated in Mahesh Chand (supra) wherein this Court held: 6. The scope of Rule 5 is wider. It regulates the seniority and pay of persons appointed against vacancies referred to in the 1973 Rules. Therefore, while it may cover those who are appointed under Rule 4, it also covers all others who are appointed against vacancies referred to in the 1973 Rules. That being so, the judgment in the case of Dilbag Singh which construed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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