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TMI Blog2021 (10) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... as been rejected. 2. FACTS: Since common questions of fact and law are involved, the facts of the lead petition are mentioned hereinbelow for deciding the controversy involved in these petitions. (i) The petitioners and private respondents are posted as Deputy Commissioner in different districts of Uttar Pradesh in Commercial Tax Department, U.P. after they were promoted in the year 2014 based on seniority list dated 09.08.2012. Services of the petitioners as well as private respondents are governed under U.P. Sales Tax Service Rules, 1983 (hereinafter referred to as 'Rules, 1983') as amended from time to time. (ii) The petitioners are direct recruits to the post of Assistant Commissioner, Commercial Tax whereas private respondents are promotee officers, who were promoted from the post of Sales Tax Officer Grade-II. Post of Deputy Commissioner and above are to be filled up only by promotion. Nomenclature of the Sales Tax Department was changed as Trade Tax Department and, thereafter name was again changed as Commercial Tax Department. (iii) In pursuance to the advertisement issued for holding selection for the Combined State Public Service Examination, 2005 by the Utta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers who have put in not less than seven years' service as such. (c) Deputy Commissioner. - By promotion from amongst permanent Assistant Commissioners who have put in not less than seven years' service as such. (2) If suitable candidates are not available for promotion on the posts of Sales Tax Officer from the prescribed field of eligibility, the Governor may, in consultation with the Commission, extend the field of eligibility to the extent considered necessary." (ii) Rule 18 of the Rules, 1983 provides for preparation of combined select list if any year of recruitment appointments are made both by direct recruitment and by promotion. The aforesaid rule provides that select list shall be prepared in such a manner that the prescribed percentage is maintained and first name in the list being of the person appointed by promotion. For ready reference, Rule 18 of Rules, 1983 is extracted hereinbelow: - "18. Combined Select List. - If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates from the relevant lists, in such manner that the prescribed percenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in the cadre from which they were promoted. (v) The State Government framed U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules, 1991') under Article 309 of the Constitution of India for determination of the seniority of persons appointed to the service under the State Government. It is provided that the Rules would be applicable to all government servants in respect of whose recruitment and conditions of service, rules may be or have been framed separately. (vi) Seniority Rules, 1991 have overriding effect so far as determination of seniority of government servants is concerned. Under Rule 4, substantive appointment has been defined as appointment, not being an ad-hoc appointment, on a post in the cadre of Service, made after selection in accordance with the service rules of the respective services. (vii) Rule 5 deals with determination of the seniority where appointments are made by direct recruitment only. Rule 6 deals with the determination of the seniority where appointments are made only from promotion from a single feeding cadre. Rule 7 deals with a situation where appointments are made by promotion from more than one feeding cadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Direct recruit Fifth ...Promotee Sixth of eight ...Direct recruit and so on. provided that- (i) Where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota; (ii) Where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees; (iii) Where in accordance with the service rules the unfilled vacancies from any source could, in the circumstances 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." 4. SUBMISSIONS: Heard Mr. Vijay Kumar Srivasta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re appointed after date of promotion of the promotees i.e. 28.07.2010 and, accordingly seniority list dated 8.07.2016 was issued. (iv) Seniority list dated 08.07.2016 was challenged before this Court by direct recruitment who were selected in the year 2010 by filing several writ petitions leading Writ Petition No.19231(SB) of 2016 (Shanti Shekhar Singh vs State of U.P. & Ors) praying therein for fixing seniority of direct recruits and promotees in cyclic manner as was done in the case of the present petitioners and private respondents in seniority list dated 09.08.2012. This Court dismissed the said writ petition vide judgment and order dated 04.05.2017 and laid down principles for determining the seniority in para 127 of the said judgment. (v) This Court has held that the seniority list should be given from the date of entry in a particular service or the date of substantive appointment. It has been further held that seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively. Judgment and order dated 04.05.2017 was challenged before the Supreme Court in S.L.P. (Civil) Diary No.8268 of 2018, however, the same was dismissed by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity should act with diligence and promptness. One cannot be allowed to knock the door of the Court after substantial lapse of time of 9 years from the date when the final seniority list dated 09.08.2012 was issued and acted upon subsequently. (x) Under Rule 8(3) of Rules, 1991, phrase 'one selection' would mean selection in the same recruitment year. To substantiate the said submission, learned Senior Advocate has placed reliance on two judgments of this Court reported in 2014 (6) AWC 6389 :Ravindra Nath Pandey vs State of U.P. and 2015 (33) LCD 1609: Anil Kumar vs State of U.P. & Ors. (xi) In respect of the seniority list dated 18.07.2016 from Serial Nos.2116 to 2702, it has been contended that the said seniority list was issued in respect of the persons who have been appointed through direct recruitment and promotion on the post of Assistant Commissioner Commercial Tax in different years after 2009. For each recruitment year, different provisions of Rules, 1991 were applied as can be seen that for recruitment year 2009-10 to 2012-13 Seniority list was prepared based on provisions of Rule 8(1) and 8(2) of the Rules, 1991 whereas in the recruitment year 2013-14, Rule 8(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity list of the petitioners and private respondents is to be prepared in accordance with Government Servants Seniority Rules, 1991. The question which arises for consideration is 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? (ii) From perusal of Rule 8, it is evident that under Sub-Rule 1, seniority is to be determined from the date of the order of substantive appointment unless the appointment order specifies a particular back date with effect from which a person would be deemed to be substantially appointed but in other cases, date of issuance of the order of appointment would be date of substantive appointments. Under Sub-Rule 2 of Rule 8 inter se seniority of persons appointed on the result of any one selection shall be same as shown in the merit list prepared by the Commission. (iii) Sub-Rule 3 of Rule 8 deals with a situation where appointments are made both by promotion and direct recruitment on the result of any 'one selection'. The sub rule (3) provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, seniority of promotees and direct recruits will be determined by a cyclic order, is concerned, since admittedly and ordinarily, in one selection, appointment and direct recruitment may not be done, then while construing the provisions 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." (viii) This Court in the case of Arun Kumar Saxena vs State of U.P. & Ors : 2008 (6) AWC 6474 while interpreting Clause 3 or Rule 8 of Rules, 1991 has held that Rule 8(3) contemplates determination of seniority between direct recruits and promotees as a result of 'one selection', meaning thereby that the aforesaid Rule will have application only where appointments both by direct rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en determined. As there cannot be "one selection" for direct recruitment and promotion, therefore, the words mentioned in Rule 8(3) can only mean selection in the same year. In these circumstances the order of rejection can also not be sustained." (x) Thus, 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. (xi) 'Recruitment year' or 'year of recruitment' is defined under Rules, 1983 to mean 12 months commencing from 1st day of July of calendar year. Rule 3(o) defines 'year of recruitment' which is reproduced hereinbelow:- "3.(o) 'Year of recruitment' means a proof of twelve months commencing from the first day of July of calendar year." (xii) The term 'recruitment year' does not mean the year in which, recruitment is initiated or the year in which vacancy arises. The Supreme Court has held that contrary view expressed in Union of India vs N.R. Parmar: (2012) 13 SCC 340 is not correct view. The Supreme Court has defined 'recruitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson can be said to have been recruited in the service. Persons appointed through direct recruitment and by promotion cannot claim seniority from the date when the vacancies occur in their respective quota, but it must be determined when final recruitment/appointment is made after selection/recruitment process. It is well settled that year in which vacancy occurs is not relevant for the purposes of determining the seniority irrespective of the year when a person is recruited. (xiv) The Supreme Court in the case of Jagdish Ch. Patnaik vs State of Orissa : (1998) 4 SCC 456 in para 32 has explained the aforesaid concept as under:- "32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Singh(supra) are extracted hereinbelow:- "28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word "recruited" occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot be said to have been recruited to the service only on the basis of initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion of the promotees i.e. 28.07.2010. Several writ petitions were filed by the direct recruits leading Writ Petition No.19231(SB) of 2016: Shanti Shekhar Singh vs State of U.P. & Ors claiming for fixation of seniority between direct recruits and promotees of the year 2010 in cyclic manner in the ratio of 1:1 as provided under Rule 8(3) and as the impugned seniority list dated 09.08.2012 was prepared. (xviii) The Division Bench of this Court vide judgment and order dated 04.05.2017 rejected the claim of the petitioners in the said writ petitions and in para 127 while laying down the principles for determination of seniority held that the seniority had to be given from the date of substantive appointment. Para 127 of the judgment and order dated 04.05.2017 is reproduced hereunder:- "127. We think it appropriate to issue the following directions to the respondents: - I. The Departmental Promotion Committee should be convened at a regular interval to draw panels which could be utilized on making promotions against the vacancies occurring during the course of a year. For this purpose, it is essential for the concerned appointing authorities to initiate action to fill up the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 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 cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh case [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] but had been guided by Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] . We have no hesitation that it is not a binding precedent on the coequal Bench." (xxii) Next question wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 (para 8-9) (xxvii) In this case, it would be wholly unjustified to unsettle the seniority position of the petitioners and private respondents, which has held the field for long 8-9 years without any challenge and promotions were made to the posts of Dy Commissioner, Commercial Tax from that seniority list. The Supreme Court in the case of K.A. Abdul Majeed Vs State of Kerala & Ors: (2001) 6 SCC 294, held that the seniority assigned to any employee could not be changed after a lapse of 7 years, though even on merit it was found that seniority of the petitioner therein had correctly been fixed. (xxviii) Any claim for seniority at a belated stage is required to be rejected as it seeks to disturb the vested right of other persons regarding seniority, rank and promotion, which have accrued to them during the intervening period. Delay and latches in challenging the seniority is always fatal. The petitioners have been fence sitters. After the SLP against the decision in the case of Shanti Shekhar Singh (supra) came to be dismissed, they have approached this Court. It is well settled that fence sitters cannot be allowed to raise a dispute or challenge the validity of the order after i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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