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2021 (10) TMI 1068 - HC - Indian LawsRejection of representation re-fixing/revisiting the seniority list by placing Direct recruit Assistant Commissioners en-block over and above the promotees Assistant Commissioners - whether inter-se seniority of the petitioners and private respondents is to be determined from the date of their substantive appointment in accordance with Rule 8 (1) or it is to be determined in accordance with Sub-Rule 3 of Rule 8 of the Seniority Rules 1991? HELD THAT - 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 - 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 petitioners were issued appointment letters on 19.12.2008 in pursuance thereof, they joined between 24.12.2008 to 16.06.2009 whereas the promotion order in respect of private respondents was issued on 27.02.2009 and all the promotees submitted their joining on the same day i.e. 27.02.2009. Whether the petitioners who had no grievance against the impugned seniority list dated 09.08.2012 till the year 2020, get cause of action in the year 2020 to challenge the said seniority list as representation filed by one of the petitioners got rejected vide impugned order dated 20.03.2020? - HELD THAT - 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. - 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, 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 2017 (5) TMI 491 - ALLAHABAD HIGH COURT - 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. If the petitioners were aggrieved by the seniority list dated 09.08.2012, they could have come to this Court before promotion to the post of Dy Commissioner, Commercial Tax was held from the said seniority list. They have approached this Court in the year 2020 and, therefore, these writ petitions are barred by gross delay and latches, which are liable to be dismissed on this ground alone - It is also well settled that settled seniority of persons in a service should not be disturbed after much delay as seniority in service should not be a variable factor. 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 - In the present case, since the appointment on the post of Assistant Commissioner was 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.
Issues Involved:
1. Validity of the seniority list dated 09.08.2012 for the cadre of Assistant Commissioner, Commercial Tax. 2. Rejection of the representation dated 03.08.2019 for revisiting the seniority list. 3. Application of Rule 8(3) of the U.P. Government Servants Seniority Rules, 1991. 4. Delay and latches in challenging the seniority list. Detailed Analysis: 1. Validity of the Seniority List Dated 09.08.2012: The seniority list dated 09.08.2012 was challenged by the petitioners, who argued that the State Government wrongly applied Rule 8(3) of the Rules, 1991. The petitioners contended that they were direct recruits from the 2005 examination, while the private respondents were promoted in 2009, and thus, their appointments were not a result of the same selection. They argued that seniority should be determined as per Rule 8(1) from the respective dates of substantive appointment. 2. Rejection of the Representation Dated 03.08.2019: Petitioner No. 8 submitted a representation against the seniority list dated 09.08.2012, which was rejected by the State Government on 20.03.2020. The rejection was based on the assertion that the seniority list was prepared in accordance with the law. The petitioners claimed that the promotee officers were given seniority from a date when they were not even part of the cadre, which was against the seniority rules. 3. Application of Rule 8(3) of the U.P. Government Servants Seniority Rules, 1991: Rule 8(3) deals with the determination of seniority when appointments are made both by promotion and direct recruitment in the same recruitment year. The court examined whether "one selection" meant appointments in the same recruitment year. It was held that "one selection" should be construed to mean selection in the same recruitment year, as per the judgments in Ravindra Nath Pandey vs State of U.P. and Anil Kumar vs State of U.P. The court concluded that the phrase "one selection" in Rule 8(3) refers to appointments made in the same recruitment year, thus justifying the cyclic order of seniority between promotees and direct recruits. 4. Delay and Latches in Challenging the Seniority List: The court noted that the petitioners did not challenge the seniority list for nine years, during which promotions were made based on this list. The court held that the petitioners' delay in challenging the seniority list was barred by gross delay and latches. It was emphasized that settled seniority should not be disturbed after a substantial lapse of time, as it would be unjust to unsettle the seniority position that had held the field for 8-9 years. Conclusion: (a) The court held that if appointments are made through direct recruitment and promotion in the same recruitment year, their seniority must be determined by applying Rule 8(3) of the Rules, 1991. (b) The seniority list dated 09.08.2012 was correctly prepared by applying Rule 8(3) for the recruitment year 2008-09. The court concluded that Rule 8(1) cannot be applied if the appointments are made in the same recruitment year. The seniority list was upheld, and the petitions were dismissed due to the delay and latches in challenging the list. Thus, the writ petitions were dismissed.
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