TMI Blog2014 (9) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... priety or illegality subject to modification that keeping in view the Service Rules in question, rota should be applied by the authorities of direct recruits and promotees appointed in one recruitment year - Appeal allowed in part. - SPECIAL APPEAL NO. - 625 OF 2008 WITH SPECIAL APPEALS(D) NO.186 OF 2009, 662 OF 2008, 669 OF 2008 AND SPECIAL APPEAL NO.631 OF 2008. - - - Dated:- 4-9-2014 - HON'BLE DEVI PRASAD SINGH AND HON'BLE ARVIND KUMAR TRIPATHI (II), JJ. For the Appellant : Rajan Roy,Rahul Srivastava,Ranjana Agnihotri,Sudha Sharma For the Respondent : C.S.C.,Gyanendra Kumar Srivastav,Y.K. Mishra ORDER (Delivered by Justice Devi Prasad Singh) 1. These special appeals under the Rules of the Court (Chapter VIII Rule 5) have been preferred, being aggrieved with the judgment and order dated 29.9.2008, passed by learned Single Judge in writ petition No.6015(S/S) of 2005 and other connected petitions deciding an issue relating to inter se dispute between the direct recruits and promotees in the cadre of Assistant Consolidation Officer. 2. We have heard Mr. R.K. Tiwari, learned Senior counsel, Mr. Shobhit Mohan Shukla and other counsels on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one by direct recruitment only and Rule 6 deals with the situation where seniority is liable to be determined in a situation where appointment is done only by promotion from a single feeding cadre. Rule 7 deals with a situation where appointment by promotion is done from several feeding cadres. However, Rule 8 deals with a situation where appointments are done by promotion and direct recruitment. Rule 8 is relevant for the purpose of determination of present controversy. For convenience, Rule 8 is reproduced as under : 8. 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 substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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. 9. Thus, under Sub Rule (1) of Rule 8, seniority is to be determined from the date of the order of substantive appointment. The proviso of Sub Rule (1) provides 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 but in other cases it will mean the date of issuance of the order. In the event of direct recruitment, the direct recruit shall lose seniority if he fails to join without valid reasons, when vacancy is offered to him. Under Sub Rule (2) of Rule 8, inter se seniority of persons appointed on the result of any one selection shall be the same as shown in the merit list prepared by the Commission. 10. However, under Sub Rule (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 dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must identify the interpretation which represents the true intention of legislature. While deciding which is the true meaning and intention of the legislature, court must consider the consequences that would result from the various alternative constructions. Court must reject the construction which leads to hardship, serious inconvenience, injustice, anomaly or uncertainty and friction in the very system that the statute concerned is suppose to regulate. 17. In S.Samuel M.D. Harresons Malayalam vs. UOI (2004)1 SCC 256, it has been held that when a word is not defined in the statute a common parallence meaning out of several meanings provided in the dictionaries can be selected having regard to the context in which the appeared in the statute. 18. In M. Subba Reddy vs. A.P. SRTC (2004) 6 SCC 729, it has been held that although hardships can not be a ground for striking down the legislation, but where ever possible statute to be interpreted to avoid hardships. 19. In Delhi Financial Corpn. Vs. Rajiv Anand (2004)11 SCC 625, it has been held that legislature is presumed to have made no mistake and that it intended to say what it said. Assuming there is a defect or an omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of a statute can be ascertained, imprecision in its language not to be allowed in the way of adopting a reasonable construction which avoids absurdities and incongruities and carries out the object or policy. 27. In view of above, sub Rule (3) of Rule 8 of 1991 Seniority Rules should be construed in such a manner which may not make the rule inoperative. Further external aid from 1992 Service Rules may be taken while interpreting 1991 Seniority Rules for removal of ambiguity and doubt, if any. 28. Accordingly, the provisions contained in Sub Rule (3) of Rule 8 should be construed harmoniously to make it effective after taking into account the other rules as well as the purpose and object of the rule. 29. 1992 Rules deals with the service conditions of Asstt. Consolidation Officer and Consolidation Officer. Rule 22 of 1992 Rules provides that the seniority of persons substantively appointed in any category of posts shall be determined in accordance with 1991 Rules (supra). Sub Rule (m) of Rule 3 defines the year of recruitment as under : year of recruitment means a period of twelve months commencing from the first day of July of calendar year. Rule 19 deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions harmoniously, the provision contained in Sub Rule (3) may be interpreted relating it to the year of recruitment as defined by Sub Rule (m) of Rule 3 of 1992 Rules. It means all persons who have been appointed by direct recruitment or by promotion in a recruitment year shall be entitled to be considered for seniority in pursuance to 1991 Seniority Rules. The seniority list shall contain the names of officers in order of their recruitment against substantive vacancy relating back to the recruitment year. The appointment should have been done in accordance with rules. 32. So far as the order passed by learned Single Judge for enblock placement of promotees is concerned, it seem to be contrary to Rules (supra) which provides roster for the placement of promotees and direct recruits in a cyclic manner. To that extent, the impugned order passed by learned Single Judge required to be modified. It shall be appropriate to consider some of the cases, relied upon by learned counsels. 33. In the case of Uttaranchal forest Rangers versus State of U.P and others JT2006(12)SC513, their Lordships of Hon'ble Supreme court held that no retrospective promotion or seniority can be gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely appointed validly in the meantime, as decided by this court in the case of K.C. Joshi others vs. Union of India, 1992 Suppl (1) SCC 272 held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. 36. In the State of Uttaranchal and another versus Dinesh Kumar Sharma (2007)1 SCC 683, Hon. Supreme Court ruled that the seniority should be reckoned from the date of substantive appointment and not from the date of occurrence of vacancy. The provisions contained in the Rules cannot be ignored. While dealing with the matter with regard to Service Rules of U.P. Agriculture Group B, their Lordships further held that there can be no automatic appointment /promotion on mere recommendation of PSC unless Government sanctions such appointment/promotion. 37. In (2000)7 SCC 561 Suraj Parkash Gupta and others versus State of J K and others, Hon'ble Supreme Court held that even if on account of delay and lethargic attitude of ..... 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