2017 (5) TMI 491 - HC - Indian Laws

Final seniority list for the cadre of Assistant Commissioner, Commercial Tax - Held that - Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively. The promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post. Appointment be issued in order as it stood in the cadre from which they are promoted . Unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to be implemented on the date when it is actually effected by way of appointment (in case of sealed cover procedure when the recommendations are kept in sealed cover awaiting the outcome of the disciplinary proceedings, promotions have to be retrospectively made with or without financial benefits subject to decision of the appointing authority.

Summary

Issues Involved:
1. Validity of the seniority list dated 18.07.2016.
2. Application of Rule 18 of the U.P. Sales Tax Service Rules, 1983.
3. Determination of seniority based on substantive appointment dates.
4. Impact of delay in recruitment and promotion processes.
5. Whether the appointments were ad-hoc or regular.
6. Directions for future recruitment and promotion processes.

Detailed Analysis:

1. Validity of the Seniority List Dated 18.07.2016:
The petitioners challenged the seniority list issued on 18.07.2016, arguing that it violated Articles 14 and 16 of the Constitution by improperly applying Rule 8(iii) of the Seniority Rules, 1991. The court found that the seniority list was prepared based on the date of substantive appointments, which is consistent with the legal principles established by the Supreme Court. The court upheld the seniority list, stating that the seniority of officers must be determined from the date of their substantive appointment.

2. Application of Rule 18 of the U.P. Sales Tax Service Rules, 1983:
The petitioners argued that the seniority list should be prepared in a cyclic order as per Rule 18. However, the court clarified that Rule 18 is not mandatory but an internal procedure meant to maintain the prescribed percentage of different categories. The court noted that Rule 18 applies only when appointments are made from a combined recruitment process in a single year, which was not the case here.

3. Determination of Seniority Based on Substantive Appointment Dates:
The court emphasized that seniority must be determined from the date of substantive appointment, as per Rule 22 of the Seniority Rules, 1991. The court reiterated that seniority cannot be given retrospectively from the date of occurrence of the vacancy. The court examined the seniority list and found it consistent with the date of substantive appointments, thus upholding the list.

4. Impact of Delay in Recruitment and Promotion Processes:
The court acknowledged the delays in the recruitment and promotion processes but stated that such delays should not affect the seniority of the officers. The court issued directions to the respondents to expedite the recruitment and promotion processes to avoid future delays.

5. Whether the Appointments Were Ad-Hoc or Regular:
The petitioners contended that the appointments were ad-hoc. However, the court found that the appointments were made following the prescribed procedures, including consultation with the Public Service Commission and approval by the competent authority. Therefore, the appointments were deemed regular and not ad-hoc.

6. Directions for Future Recruitment and Promotion Processes:
The court issued several directions to streamline future recruitment and promotion processes:
- Departmental Promotion Committees (DPCs) should be convened regularly to draw panels for promotions.
- Requisitions for direct recruitment should be sent to the Public Service Commission well in advance to ensure timely recruitment.
- The seniority of officers should be determined based on the date of substantive appointment, not the date of vacancy occurrence.

Conclusion:
The court dismissed Writ Petition Nos. 19231, 21520, 20119, and 18074 (SB) of 2016, upholding the seniority list dated 18.07.2016. However, Writ Petition No. 15963 (SB) of 2016 was decided with a direction to expedite the promotion process before the closure of the current recruitment year. The court emphasized that seniority must be based on the date of substantive appointment and issued directions to avoid future delays in recruitment and promotion processes.