Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2009 (11) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (11) TMI 912 - SC - Indian LawsSeniority list issued by the State Government for the Excise Inspectors - Vacancies which had come into existence prior to the date of amendment - criteria of promotion for the post of Superintendent of Excise and for higher post of Assistant Excise Commissioner - High Court vide judgment held that the vacancies which had come into existence prior to 10.10.1994 i.e. the date of amendment, be filled up as per the unamended Rules i.e. on the basis of merit and not on the basis of seniority subject to rejection of unfit. - HELD THAT - In the instant case, promotions had been made by two different (Departmental Promotional Committee) DPC s held on 19.12.1998 and 22.1.1999. Both the DPC s had made promotions under different rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. In Roshan Lal ors. Vs. International Airport Authority of India ors. 1980 (11) TMI 166 - SUPREME COURT , the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. A similar view had been reiterated by this Court in Government of Maharashtra ors. Vs. Deokar s Distillery, 2003 (3) TMI 727 - SUPREME COURT . These appeals are squarely covered by the aforesaid judgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted. Admittedly, the respondents were over and above the appellants in the seniority list of Excise Inspectors. The rules of 1992 were amended in the year 1994, changing the criterion for promotion from merit to seniority subject to rejection of unfit . 42 posts of AEC were to be filled up from the Excise Inspectors, as no Excise Superintendent was available for being considered for promotion to the post of AEC. The State Government wanted to fill up the said vacancies by applying the amended rules. On being challenged by some of the appellants, the High Court held that the vacancies which occurred prior to the amendment of 1992 Rules, namely, 10.10.1994 had to be filled up according to the unamended rules. The operation of the judgment and order of the High Court was stayed by this Court making it crystal clear that promotions so made under the amended rules would be subject to the decision in special leave petition. Accordingly, 61 Officers/respondents were promoted. Subsequently, this Court dismissed the SLP vide order dated 18.8.1998 in limine. The officers/ respondents so promoted were not reverted. The DPC was held on 19.12.1998 to fill up said 42 vacancies, but only 30 candidates/appellants were found eligible to be promoted to the post of AEC. The respondents were found unsuitable. In order to give the said respondents a second chance, the State Government carried forward the remaining 12 vacancies and directed to fill up the same under the amended Rules, and for that purpose another DPC was convened on 22.1.1999 and they were promoted on the basis of different criterion. Promotions were made with retrospective effect determining the yearwise vacancies. Appellants had been given promotion notionally against the vacancies, occurred in the recruitment year 1995 while the respondents were promoted notionally against the vacancies of the recruitment years 1996 and 1997. Thus, the High Court committed an error while recording the finding of fact that both set of officers had been promoted notionally from one and the same date. Admittedly, promotions were not made with effect from one and the same date. Appellants and respondents were promoted against the vacancies which had occurred in different recruitment years under different Rules and on different criterion. Thus, the respondents would rank below the appellants in seniority. Therefore, there could be no justification to hold that their inter se seniority in the feeding cadre would be relevant for determining the seniority of AECs. More so, had the interim order not been passed by this Court, the appellants could have been promoted under the unamended rules much earlier. Thus, they are entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised. The appellants had been promoted with an earlier date, thus, are bound to be senior than respondents who had been promoted with respect from a later date. No employee can claim seniority prior to the date of his birth in the cadre. In view of the above, appeals succeed and are allowed. The impugned judgment and order dated 11.4.2002 is set aside. The Seniority List dated 12.7.2000 is directed to prevail and fresh Seniority List of 26.7.2002 is hereby quashed. No orders as to cost. This petition could not be dismissed by the High Court at the threshold without examining the case on merit. However, no order is required in this case in view of the order of this date passed in the connected appeal nos.5790-5792/2002. It is accordingly disposed of.
Issues Involved:
1. Validity of the seniority list dated 12.7.2000. 2. Criteria for promotion under the U.P. Excise Service (Class-II) Rules, 1970 and U.P. Assistant Excise Commissioners Service Rules, 1992. 3. Impact of the interim order by the Supreme Court on promotions. 4. Equitable relief due to the interim order. 5. Determination of inter se seniority of promoted officers. Issue-wise Detailed Analysis: 1. Validity of the Seniority List Dated 12.7.2000: The High Court quashed the seniority list dated 12.7.2000, directing the State to prepare a fresh list placing the appellants below the respondents. The Supreme Court found that the High Court erred in its decision as it incorrectly assumed that both sets of officers were given notional promotion from the same date, which was factually incorrect. The appellants were promoted retrospectively against vacancies for the year 1994-95, while the respondents were promoted against vacancies for the years 1996 and 1997. Consequently, the seniority list dated 12.7.2000 was upheld by the Supreme Court. 2. Criteria for Promotion Under the U.P. Excise Service (Class-II) Rules, 1970 and U.P. Assistant Excise Commissioners Service Rules, 1992: The promotions to the post of Superintendent of Excise and Assistant Excise Commissioner (AEC) were initially based on "merit" under the 1970 Rules. The 1992 Rules, amended in 1994, changed the criteria to "seniority subject to rejection of unfit." The Supreme Court held that vacancies arising before the amendment should be filled based on the unamended rules (merit), while those arising after should follow the amended rules (seniority subject to rejection of unfit). 3. Impact of the Interim Order by the Supreme Court on Promotions: The Supreme Court's interim order allowed promotions under the amended rules but stated they were subject to the final outcome of the Special Leave Petition (SLP). When the SLP was dismissed, the State failed to revert the promoted officers, leading to a situation where promotions were made under both criteria. The Court emphasized that promotions made under the interim order should not adversely affect the appellants who were eligible under the unamended rules. 4. Equitable Relief Due to the Interim Order: The Supreme Court highlighted the principle that no litigant should benefit from the pendency of a case. The interim order's effect must be neutralized to ensure fairness. The appellants, who were eligible for promotion under the unamended rules, should not suffer due to the delay caused by the interim order. The Court cited precedents emphasizing that any undeserved advantage gained through litigation should be neutralized. 5. Determination of Inter Se Seniority of Promoted Officers: The Supreme Court concluded that promotions were made by two different DPCs under different rules and criteria, and with retrospective effect from different dates. The High Court's decision to fix seniority based on the feeding cadre was incorrect. The appellants were promoted against earlier vacancies and thus should be senior to the respondents. The seniority list dated 12.7.2000, reflecting this, was upheld. Conclusion: The appeals were allowed, the High Court's judgment and the subsequent seniority list dated 26.7.2002 were set aside, and the seniority list dated 12.7.2000 was restored. The Court reiterated that no employee can claim seniority prior to their appointment in the cadre, and equitable relief was granted to the appellants affected by the interim order. The Supreme Court appreciated the assistance of the Amicus Curiae in these cases.
|