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TMI Blog2017 (5) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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. - Service Bench No. 19231, 21520 , 20119, 18074, 15963 of 2016 - - - Dated:- 4-5-2017 - Hon'ble Shri Narayan Shukla And Hon'ble Sheo Kumar Singh-I, JJ. For the Petitioner : Apoorva Tewari For the Respondent : C.S.C,Sandeep Dixit,Vinayak Saxena JUDGMENT ( Delivered by Sheo Kumar Singh-I, J. ) 1. By means of the aforesaid writ petitions filed under Article 226 of the Constitution of India, the petitioners have assailed the order dated 18.07.2016 passed by U.P. Government whereby the final seniority list for the cadre of Assistant Commissioner, Commercial Tax has been finalized and issued. Writ Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. 3. It would be appropriate to quote certain rules and provisions relating and governing the service conditions of the officers of the Commercial Tax Department. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India the rules regulating recruitment and conditions of service of persons appointed to Uttar Pradesh Sales Tax Service were made vide Notification dated 24.12.1983, which defines as follows:- 2. Status of the Service. - The Uttar Pradesh Sales Tax Service is a State Service comprising Group A and Group B posts. 3. Definitions. - In these rules, unless there is anything repugnant in the subject or context: (a) Appointing Authority means the Governor of Uttar Pradesh; (b) Assistant Commissioner means an officer appointed as Assistant Commissioner, Sales Tax; (c) ........... (d) Commission means the Uttar Pradesh Public Service Commission; (e) ......... (f) ......... (g) ......... (h) ......... (i) ......... (j) Member of the Service means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may be obtained from the Secretary to the Commission on payment, if any. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission. (3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other under Rule 6, summon for interview such number of candidates as, on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists prepared under Rules 15, 16, 17 or 18, as the case may be. (2) Where, in any year of recruitment appointments are to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 18. (3) If more than one orders of appointment are issued in respect of any one selection, a combined order shall also be issued mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the list prepared under Rule 18. (4) The appointing authority may make appointments in temporary or officiating capacity also from the list referred to in sub-rule (1). If no candidate borne on these lists is available, he may make appointments in such vacancies from amongst persons eligible for appointments under these rules. Such appointments shall not last for a period exceeding one year or beyond the next selection under these rules, whichever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same as determined by the Commission: Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reason shall be final. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. 29. Regulation of other matters. - In regard to the matters not specifically covered by these rules or by special orders, persons appointed to the Service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State. 4. A tentative seniority list of the cadre of Assistant Commissioner, Commercial Tax from serial no.2116 to 2702 was issued on 01.01.2016 wherein the officers promoted to the post of Assistant Commissioner in the recruitment year 2010-2011 were placed in block over and above the direct recruits of that particular year. Aggrieved by the aforesaid seniority list, the officers recruited under the provisions of Rule 5(a) (I) of 1983 Rules submitted certain objections agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time. 31. In light of the legal position summed up above and rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies. The 1991 appointees having been appointed substantively much prior in point of time, they are entitled to rank senior to 1994 appointees. As already noticed above, rule 5 of the 1991 Rules has no application for determination of inter se seniority of the Deputy Jailors appointed by direct recruitment in 1991 and 1994. The consideration of the matter by the High Court is apparently flawed and cannot be sustained. In the present fact situation, it must be held that 1994 appointees cannot legitimately claim their seniority over 1991 appointees. 6. Taking care of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 substantive appointment and, in other cases, it will mean the date of issuance of the order: Provided further that a candidate recruited directly may lose his seniority if he fails to join wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall get the seniority of that very year as if they are appointed against the vacancies of their quota. 11. 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. 12. 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 direct recruits should be determined in a cyclic order (the first being a promotee) in accordance with the quota prescribed for the two sources. Where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncertainty and friction in the very system that the statute concerned is suppose to regulate. 19. 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. 20. 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. 21. 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 in the words used by the legislature , the court can not correct or make up the deficiency , especially where a literal reading there of produces an intelligible result .the court is not authorized to alter words or provide a casus omissus. 22. In Deepal Girish bhai soni vs. United India insurance ltd. (2004) 5 SCC 385, it has been held that statute to be rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other rules as well as the purpose and object of the rule. 30. Under Sub Rule (3) of Rule 19, it has been provided that if the appointments are made in respect of any one selection, names shall be arranged in accordance with the cyclic order referred to in Rule 18. It means a roster shall be provided in terms of rule 18 in the cadre of Assistant consolidation Officer containing direct recruits and promotees. Since 1991 Seniority Rules have got overriding effect, so far as seniority is concerned, roster shall be in accordance with Sub Rule (3) of Rule 8(supra). In case the number of candidates are not available to apply roster for each and every person selected through direct recruitment and promotion, then remaining may be placed in block at appropriate place in the seniority list. 31. 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 Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 18 of the Service Rules but this is applicable only in the case where the appointment of both the cadres is made as a result of single selection. The provision ''result of anyone selection' as contained in Rule 8(3), signifies that the requisition for both direct recruitment and for promotion must have been sent to the Public Service Commission in the same recruitment year and selection on the basis of such requisition should also be made and completed in the same year of recruitment. Where the process of recruitment/appointment was not as a result of single selection, it would be very difficult to apply Rule 18 of the Service Rules. 35. If we consider Rule 18 then it is contained in Part V of the Service Rules which provides the procedure for recruitment. This Chapter is meant for determination of vacancies and procedure for direct recruitment or procedure for recruitment by promotion and preparation of combined select list. Chapter VI deals with the appointment, probation, confirmation, selection grade and seniority. Reading of the heading of the Chapter makes it clear that Chapter V is applicable for calculation of vacancies and procedure for recruitment as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Commandant Home Guards in Home Department, District Basic Education Officer and ADIOS in Education Department, District Cane Officer in Sugar Industries Department, Deputy Secretary in Housing, Urban Planning Department, Work Officer in Panchayat Raj Department, Assistant Account Officer in Treasury Department, Sub Registration in Registration Department, Trade Tax Officer in Trade Tax Department, District Minority Welfare Officer in Minority Welfare and Waqf Department, District Probation Officer in Women and Child Development Department, Assistant Prosecution Officer (Transport) in Transport Department, District Food Marketing Officer, Food Civil Supplies Department, District Backward Class Welfare Officer in Backward Welfare Department, Nayab Tehsildar in Board of Revenue, Area Rationing Officer in Food Civil Supplies Department, and Assistant Commissioner, Trade Tax Inst. Fin., Tax Regn. Department. In this way, the candidate who fill up the application is given an option regarding choice of the post in accordance to his preference while the procedure for promotion starts after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave adverse consequence on pay, salary, increments, period of working as also on all other ancillary matters, like seniority. This will create an anomaly also for the reason that if this exercise is done in respect of direct recruitments, their services will have more adverse impact, in as much as their birth date in cadre will be shifted and the period of working prior to such date will be completely washed away and in the matter of promotees also though they will be treated to have been working on feeding post from which they were promoted but this will lead to an anomaly that the promotees despite working on the higher post cannot legally claim any benefit from such working for the reason that their date of appointment has been shifted to a subsequent date. This being the reason, the date of appointment, it can be safely summed up, cannot be altered to the detriment for the personnel. Question No.4 -Where it becomes impossible to adhere to the existing quota rule and the quota rule has not been followed continuously for a number of years because it was impossible to do so and inference may be drawn that the rule 18 had broken down. Question No.7- Where rule 18 has brok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation from Rules rather it is a case of practicable and prudent applicability of rules. Question No.5 - If the rule has been prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instructions have seized to remain operative. Answer - It may be submitted that it is the rules which governs the field and not the executive instructions. Question No.6 - As to whether procedure of appointment is one thing and determination of seniority is another thing and the seniority should be determined with reference to the date of their induction in service. Answer - True it is that procedure of selection and procedure for appointment post selection and determination of seniority are three distinct phenomena and it is the reasonableness which qualifies the test of Articles 14 and 16 of the Constitution of India based on which the seniority has been determined with reference to the date of appointment/promotion. Question No.8 - As to whether the year of vacancy is for calculation of vacancy in the cadre and the matter of determination of the seniority is to be determined in accordance with date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 1970, are applicable to all services and posts in connection with the affairs of the Uttar Pradesh to which recruitment by promotion is required to be made by selection in consultation with the U.P. Public Service Commission, otherwise than on the results of a competitive examination. Rule 5 of the aforesaid rules provides criteria for promotion based on either strict merit or primarily on merit or strictly on merit or seniority counting where merits are equal. There is a provision of preparation of eligibility list in accordance to rule 8 and this list is sent to the Commission in accordance to rule 9 and the Commission examines the eligibility list and after the decision of the Selection Committee, the select list is prepared and after consideration of the Commission and approval letter of appointment is issued in accordance to rule 17. 41. Learned counsel for the petitioners has submitted that Rule 22 which governs the seniority refers to appointment in accordance to rules and seniority of the officers appointed to the service shall be determined in accordance with the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to, the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source induc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a post according to rules his seniority has to be counted from the date of his appointment and not according to the date of his confirmation as laid down in Direct Recruits case. The same effect is also applicable to the case of the petitioners because their services are also kept under probation and after a certain period of service as provided in Rule 20 their services are confirmed in accordance with Rule 21 of the Service Rules. While dealing the case of State of West Bengal v. Aghore Nath Dey- (1993) 3 SCC 371, it was held as under:- 13......We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service. 49. Learned counsel for the respondents has relied upon the case of Prafulla Kumar Swain v. Prakash Chandra Misra and others - 1993 Supp. (3) SCC 181, where it was held that services will be counted from the date of appointment to the service. 38. The gradation list has been in operation over several years. We see no reason to unsettle the settled position. In this behalf we draw support from the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Further it has to be kept into consideration that seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises. 54. As contended by learned counsel for the respondents that the seniority list prepared on the basis of the principle of continuous length of service clearly demonstrates that in case the seniority of the officers is fixed by reference to their date of appointment, then nobody would suffer any injustice. Each and every officer would get due weightage of the service rendered by him or her in the cadre. If inter-se seniority is finally decided by applying the principle of continuous length of service, it may bring an end to litigation between the officers of two groups. Therefore, the principle of continuous length of service should be applied for determining the inter-se seniority of the officers. (R.K. Sabharwal and others v. State of Punjab - MANU/SC/0259/1995) 55. In Rudra Kumar Sain v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the competent authority and the appointee possesses the prescribed qualification for such appointment provided in Rule and continues as such for a fairly long period, then the same cannot be held to be fortuitous . In Black's Law dictionary, the expression fortuitous means occurring by chance , ' a fortuitous event may be highly unfortunate . It thus, indicates that it occurs only, by chance or accident, which could not have been reasonably foreseen. The expression ad hoc in Black's Law Dictionary, means something which is formed for a particular purpose . The expression stop-gap as per Oxford Dictionary, means a temporary way of dealing with a problem or satisfying a need . 60. In Oxford Dictionary, the word 'ad hoc' means for a particular purpose; specially. In the same Dictionary, the word 'fortuitous' means happening by accident or chance rather than design. 61. In P. Ramanatha Aiyer's Law Lexicon (2nd Edition) the word 'ad hoc' is described as for particular purpose, made, established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc . In this view of the matter, the reasoning and basis on which, the appointment of the officers promoted in the service in the case in hand was argued to be 'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous. 64. The question that the direct recruits should be alloted vacancy of the year has been replied in Suraj Prakash Gupta and others v. State of J K - MANU/SC/0337/2000 in paragraphs 81 and 82 as under:- 81. We have next to refer to one other contention raised by the respondents-direct recruits. They claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which would violate the equality clause. If the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly and basic appointment was in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority. 66. Same view has been reiterated in Baleshwar Dass Ors. Vs. State of U.P. Ors., AIR 1981 SC 41; and Delhi Water Supply and Sewage Disposal Committee Ors. Vs. R.K. Kashyap, AIR 1989 SC 278. 67. In Narendra Chadha Vs. Union of India Ors., AIR 1986 SC 638, the Hon'ble Supreme Court examined the case of officers promoted without following any procedure prescribed under the Rules but had continuously worked for 15-20 years on the posts without being reverted. The Court directed for counting the said officiating period for seniority observing that any other view would be arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution. The Court observed as under:- ......But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions could not be carried out for good reasons, then persons working on promotional post were entitled to reckon the seniority by including the officiating period. 72. A Constitution Bench of the Supreme Court in the case of Direct Recruit Engineer's case, considered whether the ad hoc service followed by regular service could be counted for the purposes of seniority and in this context the Supreme Court observed in paragraph 44 as follows:- (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. Under category (A) it has been expressly prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be consistent with the mandate of Articles 14 and 16 of the Constitution. An employee appointed on a stop-gap arrangement without following the procedure prescribed by law cannot claim the benefit of the period of officiation for the purpose of seniority or promotion. 75. In State of West Bengal Ors. Vs. Aghore Nath Dey Ors., (1993) 3 SCC 371, the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit case observing as under:- There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ''according to rules'. The corollary set out in conclusion (A), then is, that ''where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements, of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules........ 76. Similar view has been reiterated in U.P. Secretariat U.D.A. Association Vs. State of U.P. Ors., JT 1997 (2) SC 461. 77. It has, therefore, to be ascertained from the facts of each case as to whether the case of the petitioners will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression used by the Constitution Bench in Direct Recruit Engineer's case means the Rules of recruitment and not the special procedure laid down by the Court . Therefore, the Apex Court emphasized that a case has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise. 83. In Md. Israils Ors. Vs. State of West Bengal Ors., AIR 2002 Sc 468, the Hon'ble Apex Court reiterated the same view and while deciding the case, reliance had also been placed upon the earlier judgments in Suraj Parkash Gupta Vs. State of J K, AIR 2000 SC 2386; and M.K. Shanmugam Vs. Union of India, AIR 2000 SC 2704 wherein it has been held that the particular statutory Rules governing the services of an employee have to be kept in mind and in case the promotion was in accordance with the said Rules, reckoning the period of officiation for the purpose of seniority and promotion would not be questioned. The Court must also examine as to whether the authority had a power to grant relaxation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Nath Dey and others (supra). The appointment should be made after considering the suitability of all eligible candidates in strict compliance of the statutory Rules. A minor deficiency in following the procedure prescribed under the Rules, may be ignored but, if the appointment is to be made in consultation with the competent authority, such a deficiency cannot be ignored as the appointment itself would be de hors the Rules. Where the quota Rule could not be complied with for some compelling circumstances and appointments have been made with due deliberation and in accordance with rules and appointees continue for a very long period without any interruption, benefit of such a period is permissible and such appointment does not come within the category of ad-hoc appointment. 88. It has further been submitted by learned State counsel that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his right and acquiesces into the situation, his writ petition cannot be heard after a lapse of years. 89. A Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years...... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the court with the challenge against the seniority principles laid down in the Government Resolution of 1968..... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government Resolution, should have been dismissed. 92. The issue of challenging the existing seniority list, which continued to be in existence for a long time, was again considered by the Hon'ble Apex Court in K.R. Mudgal ors. Vs. R.P. Singh ors., AIR 1986 SC 2086 and the Apex Court held as under:- Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays fatal, but in case the party satisfies the court regarding delay, the case may be considered. 96. In K.A. Abdul Majeed Vs. State of Kerala ors., (2001) 6 SCC 294, the Hon'ble Supreme Court held that seniority assigned to any employee could not be challenged after a lapse of seven years; though even on merit it was found that seniority of the petitioner therein had correctly been fixed. 97. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. (Vide Aflatoon ors. Vs. Lt. Governor, Delhi ors., AIR 1974 SC 2077; State of Mysore Vs. V.K. Kangan ors., AIR 1975 SC 2190; Pt. Girdharan Prasad Missir Vs. State of Bihar ors., (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union ofIndia, AIR 1992 SC 1414; The Ramjas Foundation ors. Vs. Union of India ors., AIR 1993 SC 852; Ram Chand Vs. Union of India, (1994) 1 SCC 44; State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. (P) Ltd. ors., (1996) 11 SCC 501; Padma Vs. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage. 103. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows: 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay are most material. Upon these considerations rests the doctrine of laches. 106. Since we have heard the matter on merit at length, we feel it appropriate to decide the matter on merit considering the relevant facts as narrated above. Rule 4(h) defines 'substantive appointment' as an appointment, not being an ad-hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups what is relevant is the date of the order of their substantive appointment and appointees of much prior in point of time, must rank senior to the latter appointees. 107. In Ram Janam Singh v. State of U.P. and Anr. - (1994) 2 SCC 622 , Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule.... 109. The Court emphasized in the case of Uttaranchal Forest Rangers' Association that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. - (1991 (suppl.) 1 SCC 334 and Jagdish Ch. Patnaik - (1998) 4 SCC 456. 110. In the case of Dinesh Kumar Sharma , the Court was concerned with U.P. Agriculture Group 'B' Service Rules, 1995 and the 1991 Rules. With reference to Rule 8 of the 1991 Rules, the Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbent's birth in the service/cadre. 113. To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J K - (2000) 7 SCC 561. The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of ante-dating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In paragraph 18 of the decision (at page 578 of the SCC) the Court framed one of the points arising for consideration in the case as follows: (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter? The Court answered the question in the following terms: Point 4: Direct recruits cannot claim appointment from date of vacancy in quota before their selection. 80. We have next to refer to one other contention raised by the Respondent-direct recruits. They claimed that the direct recruitment appointment can be ante-da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: (SCC pp. 281-82, para 45) 45.(ii) 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 therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. XXX XXX XXX (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. 11. Learned Counsel appearing for the Appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and Ors. and connected matter reported in - (2008) 14 SCC 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by direct recruitment and by promotion. Here is not the case where appointment was made relating to the vacancy of one recruitment year. VI. Rule 18 is applicable when procedure of appointment is the same and recommendation is sent by the same authority to the appointing authority by means of one selection process. The facts in the present case are not within the category of recruitment in one selection process. VII. Rule 19(3) provides to issue the order of appointment in the order as it stood in the cadre from which they are promoted . 117. Learned counsel for the petitioners in Writ Petition No.19231 (SB) of 2016 has submitted that the appointment made through promotion shall be deemed to be ad-hoc promotion and be held as such by this Court on the ground of Rule 19(4) but the contention of the learned counsel is not tenable on the ground that temporary or officiating appointment can be made only when no candidate borne on these lists is available. Here in these petitions there is no case that no list is available from either Rule 15 or 16 or no procedure has been adopted. List from Rules 15, 16 or 17 was available before the appointing authority at the time of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n two categories, (1) appointment made in accordance with the procedure as laid down in the service rules, and (2) appointment dehors the rules (without applying the procedure of service rules). It is accepted case that appointments do not come within the category of appointment of category (2). The appointment was made in accordance with the appointment rules and the same was recommended to the appointing authority and the appointing authority has issued appointment letter without any condition that the appointment was of any officiating capacity. None has challenged the validity of the appointment. Thus, we cannot consider this point on the basis of argument that the appointment is dehors the rules unless and until the appointment of the respondents is challenged. 119. If the appointment of the respondents is challenged on the ground that the list while making appointment of the respondents was not in accordance with Rule 18 then it is equally applicable to the case of the petitioners also because while making the appointment of the petitioners the list was not in accordance with Rule 18. If the contention of the petitioners is taken into account that without preparation of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Union of India v. N.C. Murali decided on 14.02.2017 and reported in MANU/SC/0302/2017, it was held that the date of entry in a particular service is the safest criterion for fixing seniority inter-se between two group of officers. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. While discussing so many law points and decisions of Hon'ble the Apex Court, as discussed above, it was held and finally settled that the right of appointment/promotion does not crystallize on the date of occurrence of vacancy. Promotion is to be given effect to from the date when it is actually effected (except in the cases of sealed cover procedure). 123. If we examine the relevant seniority of the petitioners as well as the respondents, it would be better to examine the chart prepared by the respondents while placing their seniority in different batches, which is quoted below:- If we examine the appointment of the petitioners of Writ Petition No.19231 (SB) of 2016 i.e. Shanti Shekhar and others then their date of appointment and serial number against their nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2153 Bajrangi Yadav 28.07.2010 2141 Vijay Kumar Chaudhary 28.07.2010 2142 Arjun Yadav 28.07.2010 2148 Dadhibal Ram 27.02.2009 2152 Ashok Kumar 27.02.2009 2157 Vinay Kumar Gautam 27.02.2009 2154 These officers were appointed on 27.02.2009 for which recommendation and approval was received from the Public Service Commission on 17.02.2009 and they have been placed as serial no.2116 to 2177 and this is in accordance with determination of seniority rules as discussed above and we find no illegality or irregularity in placing them at serial numbers mentioned in the list. The officers mentioned at serial number 8 of the chart aforesaid were appointed on 28.06.2012 and were placed at serial numbers 2281 to 2362. These include the petitioners of Writ Petition No.18074 (SB) of 2016. The name of the officer with date of entry and serial number is given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prerna Srivastava 28.06.2012 2303 Prakash Chandra Chaurasia 28.06.2012 2312 Dharmendra Chaudhary 28.06.2012 2311 Suneel Kumar 28.06.2012 2313 Yogendra Prasad Singh 28.06.2012 2314 Seema Rani 28.06.2012 2308 Sanjay Kumar Arya 28.06.2012 2316 Suraj Pal Malik 28.06.2012 2304 Ravindra Singh 28.06.2012 2309 Anil Dixit 28.06.2012 2306 Mukesh Kumar 08.08.2014 2302 Akhilesh Kumar Dubey 28.06.2012 2301 Vijay Pal Singh 28.06.2012 2317 Ram Bhuwan 28.06.2012 2315 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iority rules as discussed above and not examined the individual seniority of other officials not a party in these petitions. Thus, we hereby feel it appropriate that in future if any officer is aggrieved by the position in the list then in light of the present judgment he may move an application before the competent authority and the competent authority may dispose of his representation individually in light of the present order. 126. During the course of argument it has been submitted by learned counsel for the petitioners as well as learned counsel for the respondents that the process of selection or recruitment by the Public Service Commission takes a long time causing delay in the appointment and further creating technicalities in determination of the seniority. Thus, certain directions may be issued to the respondents. Similarly, delay in holding the Departmental Promotion Committee has also been complained by the learned counsel. 127. We think it appropriate to issue the following directions to the respondents:- I. The Departmental Promotion Committee should be convened at a regular intervals to draw panels which could be utilized on making promotions against the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancies must be filled up within time. Accordingly, we decide the pending writ petitions on the following principles:- i. 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. ii. Any departure in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. iii. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively. iv. The promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post. v. Appointment be issued in order as it stood in the cadre from which they are promoted . vi. 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 vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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