TaxTMI 
TaxTMI 
2011 (2) TMI 1510
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.... in U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor. It reads thus : "15. Procedure for direct recruitment to the posts of Deputy Jailor, Assistant Jailor.--(1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment. (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 the Scheduled Castes, Scheduled Tribes and others under Rule 6, summon for interview such number of candidates a....
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....s Selection (Commission) Act, 1988 (for short, `1988 Act') was enacted by the U.P. Legislature to establish a Subordinate Services Selection Commission for direct recruitment to all Group `C' posts in the State of U.P. The 1988 Act came into force on February 15, 1988. 6. On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone. 7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987, the UPPSC conducted the preliminary examinations on September 24, 1989. 8. On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a competitive examination, `U.P. Karapal (Deputy Jailor) Examination, 1990' shall be held. The examination was held on due date and after holding oral interview, the Selection Commission sent a select list to the State Government in 1991 for issuance of appointment letters. 9. On November 23, 1991, the State Government issued appointment letters to the candidates selected by the Selection Commission. The present appellants in C....
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....isions 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 without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final. (2) The seniority inter se of persons appointed on the result of any one selection,-- (a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be; (b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding....
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.... of their quota." The parties are in agreement that 1991 Rules were in existence when the appointments were made to the posts of Deputy Jailor in 1991 and 1994. 12. On August 29, 1995, a tentative seniority list of Deputy Jailors was notified by the Inspector General (Prisons) - the appointing authority - and objections were called for from the concerned officers. In that list, the candidates appointed in 1991 were shown senior to the candidates appointed in 1994. The litigation between the two groups started with this list. The tentative seniority list dated August 29, 1995 came to be challenged before Allahabad High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138/2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on December 2, 2002 and the High Court directed the State of Uttar Pradesh and the Di....
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.... Court held that 1991 Rules will prevail over 1980 Rules, if there is any conflict between the two Rules. It held : ".........In the present case the proviso to Rule 5 of the 1991 Rules makes it clear that appointment is not to be treated as part of the selection because the words used in the provision are "appointed on the result of a subsequent selection". The petitioner and others similarly situate were appointed against the vacancy which existed in 1987 while the selection of respondent nos. 3 and 4 and others similarly situate by the U.P. Subordinate Selection Commission were made against vacancies which existed in 1990. In our opinion the petitioner and others similarly situate should not suffer, for no fault of theirs." 13. Being not satisfied with the judgment of the High Court dated December 2, 2002, three appeals, by special leave, have been filed, one by the State of Uttar Pradesh and the other two by 1991 appointees. 14. We have heard M/s. P.N. Mishra, Vijay Hansaria and Subodh Markandey, senior counsel for the appellants and Shri Pramod Swaroop, senior counsel for Respondent No. 1. On behalf of the appellants, it is urged that rule 5 of the 1991 Rules ha....
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....urt in L. Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261 was referred. 17. On the other hand, Mr. Pramod Swaroop, learned senior counsel for the contesting first respondent stoutly defended the judgment of the High Court. He argued that the High Court was justified in relying upon second proviso to rule 5 of the 1991 Rules and holding that the candidates appointed on the basis of result of earlier selection process must rank senior to the candidates who were appointed on the basis of the result of subsequent selection. He would submit that the UPPSC started selection process for filling 114 posts of Deputy Jailor in 1987; it was in this process of selection that the contesting private respondent was selected and appointed (although in the year 1994) and insofar as the 1991 appointees are concerned they underwent the subsequent selection process which started in the year 1990. Mr. Pramod Swaroop contended that 1991 Rules have the overriding effect and the seniority amongst 1991 and 1994 appointees has to be determined with reference to rule 5 of 1991 Rules. According to him, the expression `selection' in second proviso to rule 5 cannot be construed to mea....
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....e seen that 1980 Rules are the relevant service rules for appointment to the posts of Deputy Jailor. As per rule 5 of the 1980 Rules, there are two sources of recruitment to the post of Deputy Jailor; one, by direct recruitment and the other, by promotion from amongst the permanent Assistant Jailors in ratio of 50% each. The word `only' in rule 5 of the 1991 Rules is of significance and it becomes clear therefrom that rule 5 of the 1991 Rules has no application at all for determination of inter se seniority of the 1991 and 1994 appointees because 1980 Rules provide for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion. It is only where service rules in the State of U.P. provide for appointments by direct recruitment alone that rule 5 of 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon second proviso to rule 5 of the 1991 Rules for determination of inter se seniority amongst 1991 and 1994 appointees is, thus, misplaced. The High Court fell into grave error in not appreciating that rule 5 of the 1991 Rules operates where service rules provide for appointments by dire....
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....ppeals are also not concerned with seniority inter se of persons appointed on the result of one selection through direct recruitment or through direct recruitment and promotion in one selection and, therefore, provisions of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1) of rule 8 in unambiguous terms states that the seniority of persons, subject to the provisions of the sub-rules (2) and (3), shall be determined from the date of the order of their substantive appointments. 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 (1991 and 1994 appointees by direct recruitment) what is relevant is the date of the order of their substantive appointment and since the substantive appointment of 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees. 20. It is now appropriate to consider the authorities cited at the Bar and a couple of other decisions. ....
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.... Pertinently, the aforesaid observations of this Court with regard to the word `selection' are in the context of the age eligibility as the provision under consideration read, `has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made'. The aforesaid observations, therefore, have to be read in the context of the provision under consideration before this Court. 22. In Ram Janam Singh v. State of U.P. and Anr. (1994) 2 SCC 622 , this 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 the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309. 23. A two-Judge....
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....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........." 24. While dealing with the dispute relating to inter se seniority of Munsifs--one set of Munsif recruited on the basis of 15th examination held by the Public Service Commission under the Bihar Judicial Service (Recruitment) Rules, 1955 and another set of Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad hoc Recruitment Rules, 1974, in Surendra Narain Singh8, this Court held that candidates recruited against earlier vacancies shall rank senior to those recruited against the later vacancies. 25. In Ajit Kumar Rath, this Court followed Jagdish Ch. Patnaik and did not accept the contention that those who were appointed against the vacancies of the earlier years although, appointed later in point of time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in prior point of time. 26. This 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....
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....ummarized as follows : (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (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 the 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. (iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrosp....
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.... basis of the selection process that commenced on October 27, 1990) would rank senior to the first respondent who was appointed in 1994, even though in his case the selection process had commenced much earlier on December 26, 1987. I too reach the same conclusion but by a different way and for slightly different reasons. The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980 (the 1980 Rules) under which the appellants and the first respondent were appointed as Deputy Jailers had, in rule 22, the provision for determination of seniority in any category of posts in the service. But rule 22 of the 1980 Rules was superseded by the 1991 Rules framed under Article 309 of the Constitution and coming into force with effect from March 20, 1991. The 1991 Rules were made applicable to all government servants whose recruitments were governed by rules framed under Article 309 of the Constitution and were given overriding effect over all other service rules. Both the appellants and respondent no. 1 were appointed after the 1991 Rules came into force. Hence, both sides agreed that the question of their inter se seniority can be determined only under the provisions of t....
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....cording to the service rules appointments are to be made only by the direct recruitment...." On the other hand rule 8 begins by saying, "Where according to the service rules appointments are made both by promotion and by direct recruitment...." And under rule 8, seniority is to be determined on the basis of the date of the order of the substantive appointment. Applying the date of substantive appointment as the basis to determine seniority the appellants would indeed rank senior to respondent no.1. With full respect, however, I am unable to persuade myself in regard to the application of rule 8 of the 1991 Rules to the facts of the case. The facts of the case are extraordinary and they seem to me, to fall completely outside the provisions of the 1991 Rules. An attempt to fit those facts into any of the provisions of the 1991 Rules would, to my mind, amount to doing violence to the rules. The 1991 Rules were not made exclusively for the Jail Executive Subordinate Service (to which the post of Deputy Jailer belongs) but those rules apply to all government servants for whose recruitments rules are framed under the proviso to Article 309 of the Constitution. In making rules of....
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.... the Selection Commission on October 27, 1990, there was nothing to prevent those (including respondent no.1) who might have applied in response to the earlier advertisement by the UPPSC to also apply for the 60 vacancies under the later advertisement by the Selection Commission. When this aspect of the matter was pointed out, it was stated on behalf of the respondents that by the time the later advertisement by the Selection Commission was issued on October 27, 1990 some of the applicants before the UPPSC had become overage and were no longer eligible to apply. There are no details available as to how many of the 144 candidates appointed from the select list of the UPPSC had become overage by the time the advertisement of the Selection Commission came on October 27, 1990; even in the case of respondent no. 1 it is not stated clearly and definitely that he was unable to apply in response to the advertisement of October 27, 1990, issued by the Selection Commission because by that time he had become over age. Be that as it may, this aspect of the matter is only incidental and it is recalled simply to point out that it is not open to the respondents to contend that the position ....
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....in the following terms: "Point 4: Direct recruits cannot claim appointment from date of vacancy in quota before their selection 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-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 belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K.Chauhan v. State of Gujarat, Krishna Iyer, J. stated: Later direct recruit cannot c....