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2017 (5) TMI 491
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....re of mandamus commanding the respondents to prepare fresh seniority list in accordance with rules. While filing the Writ Petition No.15963 (SB) of 2016 (A.K. Rai and others vs. State of U.P. and others), the petitioners have prayed for issue a writ, order or direction in the nature of mandamus directing the opposite parties to finalize gradation list/seniority list from serial no.2116 and onwards and to further hold departmental promotion for remaining 42 posts of Deputy Commissioner of the recruitment year 2015-2016. The list contains the officers of two categories mentioned in Rule 5(a) (i) and (ii) of the Uttar Pradesh Sales Tax Service Rules, 1983 (for short, 1983 Rules). The recruitment on the post of Assistant Commissioner, Commercial Tax is made by direct recruitment and by promotion from amongst Commercial Tax Officers and the quota as prescribed is 50% each. The petitioners of Writ Petition No.19231 (SB) of 2016 were recruited on the basis of combined State Subordinate Service Examination, 2007 on the basis of a competitive examination and were given appointment on the following dates:- Sl. No. Name Date of appointment 1 Shanti Shekhar Singh 09.02.2011 ....
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.... by executive instructions issued by the Government; (o) "Year of recruitment" means a period of twelve months commencing from the first day of July of calendar year. 5. Source of Recruitment. - (1) Recruitment to the various categories of posts in the Service shall be made from the sources indicated against each: (a) Sales Tax Officer. - (i) By direct recruitment on the result of competitive examination conducted by the Commission, and (ii) By promotion, through the Commission, from amongst permanent Sales Tax Officers, Grade-II who have put in not less than seven years' service as such. Note. - A combined competitive examination may be held by the Commission for recruitment to the U.P. Civil (Executive) Service and any other State Services including this Service. (b) Assistant Commissioner. - By promotion from amongst permanent Sales Tax Officers 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....
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....the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in consultation with the Public Service Commission (Procedure) Rules, 1970, as amended from time to time. 17. Procedure for recruitment by promotion on the posts of Assistant Commissioner and Deputy Commissioner. - (1) For the purpose of recruitment by promotion to the posts of Assistant Commissioner and Deputy Commission there shall be constituted a selection committee consisting of - i. The Secretary (Chairman). ii. The Commissioner (Member). iii. The Secretary to Government in the Karmik Department (Member). (2) Recruitment by promotion shall be made on the basis of seniority subject to rejection of the unfit through the Selection Committee constituted under sub-rule (1). (3) The Secretary shall prepare a list of the eligible candidates in the order of their seniority and place it before the Selection Committee together with the gradation list, character rolls and other records pertaining to the candidates which may be considered relevant to the selection. (4) The Selection Committee shall consider the cases of the candidates with the help....
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.... a permanent vacancy shall be placed on probation for a period of two years. (2) The appointing authority may, for reasons to be recorded, extent the period of probation in individual cases specifying the date up to which the extension is granted: Provided that, save in exception circumstances, the period of probation shall not be extended beyond one year and in no circumstances beyond two years. (3) If it appears to be appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction he may be reverted to his substantive post, if any, and if he does not hold a lien on any post, his services may be dispensed with. (4) A probationer who is reverted or whose services are dispensed with under sub-rule (3) shall not be entitled to any compensation. (5) The appointing authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into account for the purpose of computing the per....
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....ers coming under the category of Rule 5(a) (ii) (by way of promotion) were placed in block over and above the direct recruits of that particular year. It has been narrated that seniority list prepared by the department vide order dated 18.07.2016 is in violation of Articles 14 and 16 of the Constitution of India in applying Rule 8 (iii) of the Seniority Rules, 1991. 5. While submitting counter affidavit on behalf of opposite parties 1 to 3, it has been submitted that while preparing the seniority list the respondents had taken care of the rules regulating the service conditions of the officers of this cadre as well as the direction of Hon'ble the Apex Court as held in Civil Appeal Nos.9906, 9907 and 9908 of 2003 decided on 10.02.2011. Hon'ble the Apex Court has summarized the legal position with regard to determination of seniority in the following manner:- 30. From the above, the legal position with regard to determination of seniority in service can be summarized 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 sel....
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....ppointment of incumbent either from direct recruitment or from promotee quota. ii. Respective seniority of Assistant Commissioner of promotee quota in terms of their seniority in feeding cadre. iii. Inter-se seniority of direct recruits in order of their names appearing the list published by Public Service Commission. iv. Where the date of substantive appointment of a promotee or direct recruit was same then ratio is 1:1 keeping promotee as first. 7. It has further been submitted in the counter affidavit that one of the fundamental principle of service jurisprudence is that officers will gain their seniority from the date of their substantive appointment and the respondents have taken care of this principle taking into account all the provisions of service rules and the Seniority Rules. 8. Before dealing with the matter, it would be appropriate to take into account the relevant provisions as contained in U.P. Government Servant Seniority Rules, 1991. In pursuance of the provisions of Clause (3) of Article 348 of the Constitution and in exercise of the powers conferred by the proviso to Article 309 of the Constitution the rules for determination of s....
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....ted 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 cadre or several feeding cadres. (3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-`-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources. Illustrations.--(1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order : First .. .. .. Promotee Second .. .. .. Direct Recruits and so on (2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order : First .. .. .. Promotee Second to fourth .. .. Direct Recruits ....
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....rect recruit but where the quota is in the proportion of 1:3, the seniority list shall give first place to promotee, second to fourth to direct recruits, fifth to promotee and sixth of eight to direct recruits. However, this shall be subject to certain conditions provided under the proviso to Rule 8 (supra). 13. It is argued that ordinarily, it is not possible to make selection through direct recruitment and promote persons in a single selection process. 14. In District Mining officer vs. Tata Iron and Steel co. (2001) 7 SCC 358, Hon'ble Supreme court has held that function of the court is only to expound the law and not to legislate. A statute has to be construed according to the intent of them and make it the duty of the court to act upon true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose the interpretation which represents the true intention of the legislature. 15. In Krishna vs. state of Maharashtra (2001)2 SCC 441: Hon'ble Supreme court has held that, in absence of clear words indicating legislature intent, it is open to the court ,when interpreting any provision , to read with other pro....
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.... 23. In Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551, it has been held that interpretation of a statute depends upon the text and context there of and object with which the same was made. It must be construed having regard to its scheme and the ordinary state of affairs and consequences flowing there from - must be construed in such a manner so as to effective and operative on the principle of "ut res magis valeat quam pereat". When there is to meaning of a word and one making the statute absolutely vague, and meaningless and other leading to certainty and a meaningful interpretation are given, in such an event the later should be followed. 24. In Bharat petroleum corpn.ltd. vs. Maddula Ratnavali (2007) 6 SCC 81, it has been observed that Court should construe a statute justly. An unjust law is no law at all. Maxim "Lex in justa non est." 25. Deevan Singh vs. Rajendra Pd. Ardevi (2007)10 SCC528, it has been held that while interpreting a statute the entire statute must be first read as a whole then section by section , clause by clause , phrase by phrase and word by word .the relevant provision of statute must thus read harmoniously. 26. In Japani sahoo vs. Chand....
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....tions such appointment/promotion. 32. While submitting rejoinder affidavit to the counter affidavit filed by opposite parties 1 to 3, it has been submitted by learned counsel for the petitioners that the principle of date of appointment is not applicable to the facts and circumstances of the present case, on the proposition that date of substantive appointment for considering the criteria for fixation of the seniority is to be understood in the light of the definition of substantive appointment as given in the U.P. Government Servant Seniority Rules, 1991. The seniority rules define substantive appointment to be an appointment not being an ad-hoc appointment, on a post in the cadre of service made after selection in accordance with service rules relating to that service. 33. Respondent no.5 has submitted that answering respondents were initially appointed on 28.09.1997 on the post of Commercial Tax Officer on the basis of recommendation of U.P. Public Service Commission and were promoted on the post of Assistant Commissioner, Commercial Tax on 28.07.2010 and placed in the seniority list which has been prepared inconsonance with U.P. Sales Tax Service Rules, 1983 as well as th....
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....of seniority. Further Rule 18 does not govern the determination of seniority. In the State of U.P. the rule applicable for determination of seniority in all services is contained in the Seniority Rules, 1991. If reliance is place on Rule 18 to construe it as a rule governing the determination of seniority then such reliance would be misinterpretation because Rule 18 expressly overruled by Rule 3 of 1991 rules and further officers of both the cadres, not having been appointed as a result of one selection, there cannot be any requirement in law to arrange their names in cyclic order in the seniority list. 36. It is settled proposition of law that seniority cannot relate back that too a period when the incumbent was not even borne in service cadre. The seniority cannot be reckoned or determined from the date of occurrence of vacancy or given retrospectively and for determination of inter-se seniority, the date of entry in a particular service or the date of substantive appointment is the safest criteria for fixing the seniority in respect of the officers recruited and selected from different sources. 37. During the course of argument and with the consensus of learned counsel for....
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....nt is sent to the Departmental Promotion Committee to examine the merit of the candidates. Since the matter of promotion is an intradepartmental proceeding is less time consuming. It has further been submitted that even after the select list is published by the Public Service Commission, the incumbent does not acquire any right of appointment unless he is found medically fit and his personal antecedents are verified by the police or intelligence agencies. The select list prepared by the Public Service Commission dated 03.12.2010 was sent by the Department of Personnel to the Department of Commercial Tax on 11.02.2011 and after completing necessary formalities, letters to different District Magistrates were issued to verify the antecedents and character of the candidates and names were sent to the Medical Board for examination and issue of medical fitness. The questions which were framed by the Court and were given for answer are reproduced along with their answers as under:- Question No.1- As to whether from the date of application of this rule any list of appointment has been prepared or issued in accordance with rule 18. Answer - The service rules were notified ....
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....appointments are made after following the procedure prescribed by the rules for appointment, the appointees should not be pushed down below the appointees from the other source inducted in service at a later date. Question No.9-As to whether presumption should be raised that there is a deviation from rule and are in practice since long. Question No.10- As to whether appointment can be made in accordance with the recommendation made under rule 16 or 17 or 18 (from any of the list available to the appointing authority or only from the list which is prepared under rule 18). Answer to Question nos.4, 7, 9 & 10-The four questions are inter connected with each other. It is now well settled that the Rules cannot be read and interpreted in the manner to lead to an absurdity and the only way of interpretation of Rules can be their workable and executable implementation not violating Article 14 and 16 of the Constitution of India. As already submitted, it was practically unreasonable and therefore impossible to follow the Rule 18, as if Rule 18 is followed as per the answer given to the question, a very anomalous situation would create and therefore, if Rule 18 and....
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....ce with date of appointment and the date of induction in service. Answer - It is submitted that the year of vacancy for calculation of vacancies in the cadre has nothing to be with the matter of determination of seniority. Suppose a direct recruit is appointed in 2017 against the vacancies of 2013 then determining further appointment will be the date of appointment and not the year of vacancies for the reason that person is borne in the cadre in the year 2017 itself. In the matter of promotees also unless in given case the appointment after promotion specifies a back date, year of vacancy has no role to play in the matter of determination of seniority. Thus, the year of vacancy is confined exclusively for calculation of vacancy in the cadre and it has nothing to do with the matter of determination of seniority. It is thus the date for appointment and date of induction in service which is the factor determining the seniority. Question No.11 - What is the relevancy of principle that continuous length of service should be the criteria for inter-se seniority between two sources of appointments provided they possess the required qualification as contained in the rules ....
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.... in accordance with the order of their appointment and that too in accordance with the provisions as contained in Rule 18 i.e. in the cyclic order while learned counsel for the State has submitted that the system as contained in Rule 18 makes it abundantly clear that Rule 18 is a procedure for recruitment of the suitable candidates and it is meant for recruitment to the service from various sources. It has further been submitted that if the seniority is to be determined in accordance to Rule 18 then Rules 21 and 22 will become redundant. The plain language of Rule 22 speaks regarding determination of seniority of members of the service in accordance with the order of their appointment and not as per the roaster points enumerated in Rule 18. The expression in accordance with the order of their appointment to the service refers to the point of time when the officers are appointed and not its slot allotted to them under Rule 18. Meaning thereby the candidates appointed earlier in point of time will rank senior to others who are appointed subsequently. Reliance has been placed on (2006) 6 SCC 673 - Arvinder Singh Bains vs. State of Punjab and others. 42. In the case of Roshan Lal Ta....
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....ed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised, that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position. 45. The view of the Court may be considered in light of H.C. Ma....
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....o reason to unsettle the settled position. In this behalf we draw support from the judgment of this Court In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. We may also note that though the same question was before this Court a little before the petition was made by respondent I before the Tribunal, no effort was made by respondent 1 to intervene and place before this Court his point of view. It is inconceivable that he would not have known that the same question was before this Court." 50. In Jagdish Chandra Patnaik v. State of Orissa - (1998) 4 SCC 456, it was held that year of vacancy has no relevance with the determination of seniority of the officers in case of direct recruits. The process of recruitment starts with the invitation of application by the Commission and in case of promotion, it starts with the nomination of preparation of eligibility list and until final selection is made by the Government or appropriate appointment orders are passed thereon no person can be said to have been recruited to the service. 51. In Bimlesh Tanwar v. State of Haryana and others - AIR 20003 SC 2000, it was held that determination of seniority s....
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....nd others v. State of Punjab - MANU/SC/0259/1995) 55. In Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25, it was held that the seniority of the officers should be decided on the basis of continuous length of service. 56. The best solution to the situation is to have continuous officiation against the sanctioned and available vacancies ought to receive due recognition in fixing the seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. It was also held that since rule of quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously on the posts created in the service. 57. Learned counsel for the respondents has submitted that even the recruitment of the respondents have been made in accordance with the procedure of recruitment rules and after due consultation and/or approval of the....
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....he word 'ad hoc' is described as "for particular purpose, made, established, acting or concerned with a particular and or purpose'. The meaning of word 'fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God'. 62. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding Cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as &....
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.... 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 direct recruitment quota. 82. 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 born in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat- [1977]1SCR1037 Krishna Iyer, J. stated: later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service. Again, in A. Janardhana v. Union of India - (1983)IILLJ175SC it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarl....
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....ake it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results............... where there is no dispute regarding the entry of the officers concerned into the same Grade." 68. It is evident from the above observation that in that case, the direct recruit had not raised any dispute regarding the entry of the promotees and the government was enclothed by the applicable relevant Service Rules to relax any of the service conditions and the promotees had worked for 15-20 years with due deliberations, after consulting competent authority. The Court held that service conditions stood relaxed impliedly. 69. In S.G. Jaisin....
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....the rules, the period of officiating service will be counted." Under category (A) it has been expressly provided that where the initial appointment is not according to rule but is only ad hoc and made as a stop-gap arrangement, the period of officiation on such post cannot be counted for the purpose of seniority. 73. In Keshav Chandra Joshi & Ors. Vs. Union of India & Ors., AIR 1991 SC 284, the Hon'ble Supreme Court explained the scope of proposition "B" in Direct Recruit Class II Engineers (supra) observing as under:- "Propositions ''A' and ''B' cover different aspects of one situation. One must discern the difference critically. Proposition ''B' must, therefore, be read along with para 13 of the judgment wherein the ratio decidendi of Narendra Chadha was held to have considerable for. The latter postulated that if the initial appointment to a substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to 20 years without reversion and still the date of regularisation of the service in accordance with the rules the period of officiating service ....
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....ly ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority...............We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). In our opinion, the conclusion (B) was added to cover a different kind of situation wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the ....
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....e of the petitioners will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in the case of Direct Recruit Engineer's case. 78. The Supreme Court in the case of Masood Akhtar Khan Vs. State of M.P., (1990) 4 SCC 24; Excise Commissioner, Karnataka & Ors. Vs. V. Sreekanta, 1993 Supp. (3) SCC 53; Anuradha Bodi (Dr.) Vs. Municipal Corpn. of Delhi, (1998) 5 SCC 293; Keshav Deo Vs. State of U.P., (1999) 1 SCC 280; L. Chandrakishore Singh Vs. State of Manipur, (1999) 8 SCC 287; T. Vijayan & Ors. Vs. Divisional Railway Manager & Ors., AIR 2000 sc 1766; State of Bihar Vs. Kameshwar Prasad Singh, AIR 2000 SC 2306; and Santosh Kumar & Ors Vs. G.R. Chawla & Ors., AIR 2003 SC 3304, after considering the Constitution Bench decision in Direct Recruit Engineer's case, held 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. 79. In Syed Khalid Rizvi & Ors. Vs. Union of India & Ors., 1993 Supp (3) SCC 575, the Apex Court while resolving the dispute of seniority between promotees and direct rec....
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.... promotion would not be questioned. The Court must also examine as to whether the authority had a power to grant relaxation under the said Rules and if relaxation is so granted, it should be in accordance with the said Rules. 84. Learned counsel for the petitioners has submitted that in light of the above reasons it requires relaxation by the competent authority and in case there is no relaxation the appointment of the respondents can be said to be within the purview of appointment dehors the rules. Here is not the case of non-compliance of the statutory rules. The appointment of the respondents was in accordance with rules prescribed in the service rules and after the decision of the Departmental Promotion Committee the appointment letter was issued by the competent authority after due approval. Thus, the grant of relaxation of any condition was not required while issuing appointment order to the respondents. 85. In P.N. Premchandran Vs. State of Kerala & Ors., (2004) 1 SCC 245, the Apex Court held that if there is a lapse on the part of the employer-authority in making the regular promotions, though ad hoc promotion had been given earlier, the benefit of officiating period ....
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....ition cannot be heard after a lapse of years. 89. A Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shanker Deodhar & ors. Vs. State of Maharashtra & ors., AIR 1974 SC 259, considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. While deciding the said case, the Apex Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reasons of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:- "A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the courts cannot harm innocent par....
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....d the Apex Court held as under:- "Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.......In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches." 93. While deciding the case, the Apex Court placed reliance upon its earlier judgment in Melcom Lawrance Cecil D'Souza Vs. Union of India & ors., AIR 1975 SC 1269, wherein it had been observed as under:- "Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public services is a feeling of security. It is difficult no doubt t....
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....reater 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 SCC 627; Hindustan Petroleum Corp. Ltd. Vs. Dolly Das, (1999) 4 SCC 450; Life Insurance Corporation of India Vs. Jyotish Chandra Biswas, (2000) 6 SCC 562; L. Muthu Kumar & Anr. Vs. State of Tamil Nadu & ors., (2000) 7 SCC 618; Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & ors., AIR 2000 SC 671; and Inder Jit Gupta Vs. Union of India & ors., (2001) 6 SCC 637. 98. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:- "There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether th....
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....red) 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 nobody else, even Dharagupta is not entitled to any relief." 104. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before app....
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....e 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. 108. A two-Judge Bench of the Court in Jagdish Ch. Patnaik - (1998) 4 SCC 456, while construing the word 'recruited' occurring in Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what the Court said: 34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the intervenors, to the effect that the expressions "recruitment" and "appointment" have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression "recruited" it must be a stage earlier to the issuance of appointment let....
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....ervice 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 be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy. 111. The Constitution Bench of Apex Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715 stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed 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. The legal position with regard to determination of seniority in service was summarized by the Apex Court 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. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of e....
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....t 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-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. 81. 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 - (1977) 1 SCC 308, Krishna Iyer, J. stated: Later direct recruit cannot claim deemed dates of appointm....
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....en 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 29. Paragraph 7 of the judgment reads as follows: 7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera -1989 Supp. (2) SCC 625 : 1990 SCC (L & S) 127, State of Uttaranchal v. Dinesh Kumar Sharma - (2007) 1 SCC 683 : (2007) 1 SCC (L & S) 594, K.V. Subba Rao v. Govt. of A.P. - (1988) 2 SCC 201 : 1988 SCC (L & S) 506 : (1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar -(2004) 10 SCC 734 : 2005 SCC (L & S) 169 etc." 115. In light of above guidelines the settled provisions are that the seniority shall be counted from the date of actual appointment and not from the vacancy. 116. Much emphasis has been given by learned counsel arguing on behalf of the direct recruits of Rule 18 and it has been submitted that Rule 18 is mandatory and without prepa....
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....nt 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 issue of order of appointment and there was no need to make any temporary or officiating appointment. There is not the case of the State Government or the Public Service Commission that they had made ad-hoc appointment or there is nothing in the order of appointment that the appointment of the respondents was in the officiating capacity. In these circumstances, presumption or inference cannot be drawn by means of interpretation of Rule 18 that the appointments so made may be held to be officiating or temporary in nature. The contention of the petitioners that the appointment of the respondents are dehors the rules and thus be held as such is not based on any sound ground. It is contented on the basis of inference and presumption that since the list has not been prepared in accordance with Rule 18, the appointments of the respondents shall be held to be officiating in nature. 118. This Court is ....
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....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 list under Rule 18, no appointment can be made or it is illegal appointment then in these circumstances the appointment of both categories will go and this is not the case of either of the parties. Since there is no challenge of the appointment, it does not require any discussion. 120. Rule 22 determining the seniority provides that the seniority of the person in any category of posts shall be determined from the date of order of substantive appointment and further if two or more persons are appointed together, by the order in which their names are arranged in the appointment order, the proviso to Rule 22(2) provides that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. This provision makes it clear that the intention of the rule maker was that the seniority shall be determined from the date of order of appointment. ....
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.... 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 name is found as below:- Name Date of Appointment Serial No. Shanti Shekhar Singh 09.02.2011 2212 Prabhat Kumar Pathak 09.02.2011 2216 Rahul Kumar Dwivedi 24.12.2010 2214 Bhawesh Singh 09.02.2011 2221 If we examine the candidates at serial no.6 (Chart B) of the aforesaid chart then it makes it clear that they were appointed on substantive post on 27.02.2009. The appointment of the petitioners Shanti Shekhar Singh etc. was from 24.12.2010 to 30.03.2011. Thus, the placing in the seniority list of serial no.1 and 6 is in accordance with date of substantive appointment and we do not find any illegality or irregularity in placing the petitioners in the seniority list. Similarly, at serial no.7 (Chart B) of the chart, the candidates were appointed on substantive post on 28.07.2010 and they were placed from serial no.2122 to 2211. Accordingly, the seniorit....
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....e substantively appointed vide order dated 16.05.2013, thus, they should be given seniority to those officers but contention of the petitioners would not be justified for the reason that issuance of the appointment letter starts from 27.07.2011 and they were recommended from the Public Service Commission on 11.02.2011 and that was of the recruitment year 2007-2008 and in light of the rules, appointment order is to be issued in accordance to select list. Thus, they have been rightly placed at serial number mentioned against their names. The details of the petitioners of Writ Petition No.21520 (SB) of 2016 is as follows:- Name Date of Appointment Serial No. Brijesh Kumar Deepankar 13.09.2011 2269 Upendra Yadav 09.08.2011 2251 The petitioners of this petition are rightly placed at serial number by seniority according to their date of appointment. Similarly, the details of the petitioners of Writ Petition No.20119 (SB) of 2016 are as under:- Name Date of Appointment Serial No. Pushpesh Singh 28.06.2012 2310 Manoj Kumar Shukla 28.06.2012 2305 Prerna Srivastava ....
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....elves for issue of a mandamus for the reason that the respondents have every right to leave any vacancy unfilled or hold in abeyance in light of the provisions contained in Rule 4(2) (Proviso a), which provides as under:- "4(2) Provided that the Governor may - (a) Leave unfilled or hold in abeyance any vacant post without thereby entitling any person to compensation..........." 125. We also make it clear that we have examined the matter in controversy on the basis of policy and principles for determination of seniority. We have heard the cases of the petitioners in light of the seniority 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 pr....
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....s. After considering the eligibility list the select list be prepared according to the vacancy of recruitment year. III. The requisition for selection by way of direct recruitment be sent to the Public Service Commission by calculating the existing vacancies and vacancies likely to occur during the recruitment year as per existing rules and be sent to the Public Service Commission in advance so that the process of recruitment be conducted and completed within a time frame and recommendation from the Public Service Commission be sent to the Government before the starting of the recruitment year so that the 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 consiste....
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.... कराकर अंतिम रूप अधिकारियों की तिथि कà¥à¤°à¤®à¤¾à¤‚क संखà¥à¤¯à¤¾ व दिनांक से कारà¥à¤®à¤¿à¤• विà¤à¤¾à¤— की संखà¥à¤¯à¤¾ के माधà¥à¤¯à¤® से पà¥à¤°à¤¾à¤ªà¥à¤¤ परिणाम Document 2 1. 16 2006-07 2007 बैच 19.05.2010 12 24.12.2010 से 2212 से 566/29.12.06 30.03.2011 2223 2. 65 2007-08 2008 बैच 11.02.2011 57 27.07.2011 से 2224 से 242/09.07.08 16.05.2013 2280 3. 134 2008-09 2009 बैच 31.05.2012 123 31.08.2012 से 2363 से 700/30.01.09 28.01.2012 2486 4. 37 2009-10 2010 बैच 17.01.2013 33 16.05.2013 स....