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TMI Blog2013 (8) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the High Court took note of the statement by the learned Counsel for the State and directed that it should be in the fitness of things that the Public Service Commission shall make earnest efforts to expedite the whole process relating to promotion within a period of six months. Eventually, on 15.6.2005 the U.P. Public Service Commission, (for short 'the Commission'), the Respondent No. 2 herein, recommended the names of six persons for promotion to the post of Readers. As far as the Respondent No. 1 is concerned, he was placed at serial No. 6 and it was mentioned therein that the vacancy in respect of which the 1st Respondent had been recommended for promotion had arisen after the superannuation of one Dr. Hari Shanker Pandey on 31.7.2001. The state Government considering the recommendation of the commission issued an office memorandum on 16.8.2005 promoting the 1st Respondent and given him the posting in State Ayurvedic College, Lucknow. As the 1st Respondent was given seniority w.e.f. 16.8.2005 which is the date of passing of the order of promotion he felt aggrieved and the said grievance compelled him to prefer O.A. No. 134 of 2006 before the U.P. State Public S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein to consider the case of the Petitioner and pass a fresh order in accordance with the verdict given by it. The penetrability of the aforesaid order is called in question by the State of U.P. and its functionaries in this appeal by way of special leave. 4. It is submitted by Mr. P.N. Misra, learned senior counsel appearing for the Appellant that the High Court has flawed by placing reliance on the decision rendered in Keshav Chandra Joshi (supra), as the same was delivered in a different context and that apart the ratio that has been culled out by the High court from the said pronouncement is not the correct one. The learned senior counsel has criticized the reasoning that when the service rule itself empowers the Government to decide the seniority from the year of vacancy, the Government is not justified in deciding the seniority of the 1st Respondent from the date of promotion to the post of Reader. It is his further submission that the High Court has committed a grave factual error by opining that under Rule 21 of the 1990 rules when seniority was accorded to 10 persons form the date of vacancy, non-granting of the similar benefit to the Respondent did tantamount to hostil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time. Provided that a person appointed to a post except the post of Associate Professor or Professor on the recommendation of the Commission for which the requisition had been sent to the Commission before the commencement of the Uttar Pradesh State Medical colleges Teacher Service (Second Amendment) Rules, 2005 shall be entitled to seniority from the date of his appointment notwithstanding the fact that a teacher has been given personal promotion to the same post under Rule 15 in the same recruitment year. Thus, on a plain reading of Rule 20 it is perceptible that certain categories of incumbents are entitled to seniority from the date of their appointment notwithstanding the fact that they have been conferred personal promotion to the same post under Rule 15 in the same recruitment year. It is evident that benefit of seniority has been given to the incumbents who are governed by a different set of rules altogether. The High Court, as we notice, has referred to Rule 21 of 1990 rules which g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, if any, rests with the Government. Be that as it may, the recommendations of the commission cannot be treated to be binding on the State Government. (See Jatinder Kumar and Ors. v. State of Punjab (1985) 1 SCC 122.) Thus, it is perceptible that all the incumbents promoted along with the Respondent No. 1 were given seniority from the date of promotion and not from the date when the vacancies arose. Therefore, the factum of arbitrary discrimination does not arise and accordingly we are unable to concur with the view of the High Court. 8. Presently, we shall advert to the rule position. The relevant part of Rule 21 of the 1990 rules by which the 1st Respondent is governed, is reproduced below: 21. Seniority - (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by 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 substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of service from the dates of their initial promotion should be counted towards their seniority. In opposition, it was urged that the appointment of the promotees admittedly being ad hoc, they had no right to the posts and hence, their seniority could be counted only from the dates of their substantive appointment. The Court after scanning the anatomy of relevant rules opined that in order to become a member of the service he/they must satisfy two conditions, namely, the appointment must be in substantive capacity and the appointment has to be to the post in the service according to rules and within the quota to a substantive vacancy. The learned Judges observed that there exists a marked distinction between appointment in a substantive capacity and appointment to the substantive post. Therefore, the membership to the service must be preceded by an order of appointment to the post validly made by the Governor. Then only he/they become member/members of the service. The Court further stated that any other construction would be violation of the Rules. After so expressing, the Court posed two questions: When promotees become members of the cadre of Assistant Conservators in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules and until they are appointed by the Governor according to rules, they do not become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority. 10. From the aforesaid, it is clear as day that what is meant by reckoning of seniority from the date of vacancy in the context of the facts of the said judgment has been wholly misunderstood by the High Court. In the case of Keshav Chandra Joshi (supra), the controversy that arose pertained to the seniority between direct recruits and promotees. The Court opined that when promotion is given beyond the quota of the promotees, the seniority has to be reckoned from the date of vacancy arising within the quota meant for the promotees. The Court further observed that the previous promotion would be regular only from the date of vacancy within the quota and the seniority shall be counted only from that date and not from date of earlier promotion or subsequent confirmation. The factual matrix, the relevant rules, the concepts of direct recruit quota and the promotee quota and the fortuitous appointment and the principle stated therei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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