TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 491
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....o 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 2 Prabhat Kumar Pathak 09.02.2011 3 Rahul Kumar Dwi....
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....ment. - (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 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. Part V Procedure for Recruitment ....
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.... 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 of their character rolls and other relevant records. If it considers necessary, it may interview the candidates also. (5) The Committee shall draw up a list of the selected candidates arranged in the order of their seniority on the post from which they have been selected and forward the same to the appointing authority. 18. Combined Select List.....
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....s. (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 period of probation. 22. 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 substa....
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....g 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 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 stat....
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....ntal 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 seniority of persons appointed to the service under the State Government were framed which shall apply to all government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution. 9. 1991 Seniority Rules framed under the proviso to Art. 309 of the Constitution of India have overriding effect (Rule 3) and deals with the matter with regard to determination of seniority. According to Sub Rule (h) of Rule 4, substantive appointment has been defined as app....
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....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 Fifth .. .. .. Promotee Sixth of eight .. .. Direct recruits and so on Provided that : (i) where appointment 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 ....
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....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 provision of the same statute. 16. In Essen Deinki vs. Rajiv Kumar (2002)8 SCC 409, it has been observed that it is the duty of the court to give broad interpretation keeping in view the purpose of such legislation of preventing arbitrary action however statutory requirement can not be ignored. 17. In Grasim industries ltd. vs. Collector of Custom (2002) 4 SCC297, it has been held that while interpreting any word of a statute every word and provision should be looked at generally and in the context in which it is used and not in isolation. 18. In Bhatia international vs. Bulk trading S.A. (2002)4 SCC 105, it has been held that where statutory provision can be interpreted in more than one way , court must identif....
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....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. Chandra shekhar mohanty (2007) 7 SCC 394, it has been held that a court would so interpret a provision as would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconditional by adopting rule of literal legis. 27. In 2010 (9) SCC 280, Zakiya Begum Vs. Shanaz Ali, it has been held that an Explanation to a section should normally be read to harmonise with and clear up any ambiguity in the main section and normally not to widen its ambit. 28. In 2010 (7) SCC 129, Bondu Ramaswamy Vs. Bangalore Development Authority, it has been observed that an interpretation that would avoid absurd results should be adopted - When the object or policy of a statute can be ascertaine....
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....les 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 the Seniority Rules, 1991. Rule 8(1) of the Seniority Rules envisages the procedure for determination of the seniority where appointments are made by two sources, by way of direct recruitment or by way of promotion, as contained in Rule 5(a) (i) and (ii) of 1983 Rules. Rule 8(1) of the Seniority Rules, 1991, provides that where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order. The officers whose date of substanti....
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....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 the parties certain questions were framed and given to the learned counsel for the parties to reply so that the discussion and the controversy may be easily settled. 38. In the supplementary counter affidavit filed by opposite parties 1 to 3, it has been narrated that the method of selection through direct recruitment and selection through promotion are quite distinct and separate from each other. The selection of direct recruitment starts from the calculation of the vacancies in accordance with the provisions contained in Rule 14 of 1983 rules and it is sent to the Commission for making advertisement for inviting application from eligible candidates. It is based on holding a preliminary examination, main written examination and thereafter an interview.....
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.... 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 in the year 1983. It is stated that from the date of notification of service rules, no list of appointment has ever been prepared or issued in line or in accordance with the scheme of Rule 18. Question No.2- As to whether date of appointment can be shifted from any other date resulting as no appointment of the date of the issue of the order and the consequence thereof regarding pay, salary and work done during the period. Question No.3 - As to whether any subsequent order of appointment can be issued, nullifying the previous appointment. Answer to question nos. 2 & 3 - It is respectfully submitted that so far as cases of direct recruitments are concerned, it is now well settled that date of appointment cannot be shifted/altered. Likewise in the matter of promotees, sometimes the anterior date of promotion is assigned/specified but in no case the date of appointment has ever been shifted or it can ....
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.... 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 19 are pressed into service in the manner as suggested by the petitioners it will lead to a chaos. If the process of selection through direct recruitment and promotion starts on the same day, it does not mean that it will also end on the same day or for that matter in the same year. Most of time in the matter of direct recruitment, the Commission consumes too much time, some times five years or more. In this situation where the promotees in respect of which selection process starts along with the aforesaid direct recruits cannot be legally permitted to wait or be permitted to officiate on promoted post for long period of time. Therefore, the appointees cannot be pushed down below the appointees of other source inducted in services at a later date. The safe and reasonable criteria is that even after notifying the vacancies as per quota, since the procedure of recruitment from 2 methods is quite distinct and separate from each other, it is respective date of ....
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....ous 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 and the appointment had been made under rule 16 or 17 after due consultation and approval of the competent authority. Answer - In respect of this pertinent query, the submission is that it is length of service a particular post which emanates from the date of appointment/promotion is criteria for determining seniority or inter se seniority between the appointees coming from two sources. Question No.12 - As to whether appointments made under Rule 16 or 17 can be held to be alien to the cadre. Answer - The appointments made under Rule 16 or 17 are within the cadre being made on vacancies available in the cadre and not on any ex-cadre post and therefore appointments cannot be said to be alien to the cadre. 39. Learned counsel for the petitioners has submitted that during the preparation of previous seniority list Rule 18 was taken into account and the list was prepared in a cyclic order as per the provisions of Rule 18 but the respondents specifically the State of Uttar Pradesh and the Department have ....
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....ed 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 Tandaon vs. Union of India - AIR 1967 SC 1889, it was held that it is the length of actual service that must be the determining factor in the matter of promotion and consequential seniority. 43. In Direct Recruit Class II Engg. Officers' Assn. vs. State of Maharashtra - (1990) 2 SCC 715, it was held that the rules fixing the quota of the appointees from two sources are meant to be followed. But if it becomes impractical to act upon it, it is no use insisting that the authorities must continue to give effect to it. There is no sense in asking the performance of something which has become impossible...............in such a situation, the rule should be appropriately amended so that the scope for unnecessary controversy is eliminated. 44. In Arvinder Singh Bains vs. State of Punjab and others - (2006) 6 SCC 673, the ratio as laid down by the Court was as under:- (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confir....
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....position. 45. The view of the Court may be considered in light of H.C. Mathur (Dr.) v. State of U.P. - 1991 Lab IC 1846 (All.) and Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25 where in Paragraph 20 it was held that in service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be 'stopgap or fortuitous or purely ad hoc. 46. The case of Bhupendra Nath Hazarika and another v. State of Assam and others - (2013) 2 SCC 516 deals with regular batch or direct recruitment, vis-a-vis special batch where it was held that appointment of candidates belonging to special batch would not entitle to seniority over regular batch. 47. The facts of the present case differ from the case mentioned in Bhupendra Nath Hazarika's case. 48. It is argued on behalf of the petitioners that the seniority of ad-hoc appointees will be considered from the date of substantive appointment but it is matter to be discussed as to whether the appointment of the resp....
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....0, it was held that determination of seniority should be based on basis of merit in terms of merit list or on the basis of date of joining of the post. 52. Hon'ble the Apex Court while deciding the case of B.S. Mathur and another v. Union of India and others - (2008) 10 SCC 271, held that where there is a break down of Rule 18 in the service, determination of inter-se seniority by applying the principle of continuous length of the service in accordance with seniority rules is proper procedure. A perusal of the seniority list shows that rota quota remains broken down even today. It may be pertinent to mention that steps for appointment of direct recruitment through Public Service Commission were actually taken by the respondent State many years before their appointment actually took place but the appointment came in place only after considerable delay. Though as per law the direct recruits cannot be blamed or faulted for the delay because in their appointments, the fact remains that delay in appointment should not cause any disadvantage to the incumbents appointed in the service and the service shall be deemed to be continued from the date of their appointment. The chart submit....
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.... consultation and/or approval of the competent authority and the incumbents were duly qualified for being promoted, the appointment cannot be said to be ad-hoc appointments or stopgap arrangement. 58. It has been argued that the appointment of the respondents is within the category of ad-hoc appointment. But perusal of the submissions made by the parties and the condition of appointment reveal that it is not a case of ad-hoc appointment. The respondents were eligible to be promoted on the post and they were considered by the competent committee and after due approval of the competent authority they were promoted on the substantive posts. Thus, their appointments can never be said to be ad-hoc appointments. 59. The three terms 'ad hoc', 'stop gap' and 'fortuitous' are in frequent use in Service Jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appo....
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....an be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made without applying the procedure of appointment then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of ....
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....as pointed out in A.N. Pathak v. Secretary to the Government - (1987)IILLJ140SC at p. 767 that slots cannot be kept reserved for the direct recruits for retrospective appointments." 65. In S.B. Patwardhan Vs. State of Maharastra, AIR 1977 SC 2051, the Apex Court held that the period of continuous officiation in government service, after appointment of an employee by following the Rules applicable for substantive appointment has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the available eligible candidates and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitati....
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....a, AIR 1967 SC 1427; A.K. Subraman Vs. Union of India, AIR 1975 SC 483; Paramjit Singh Sandhu Vs. Ram Rakha, AIR 1979 SC 1073; A. Janardhana Vs. Union of India, AIR 1983 SC 769; O.P. Singla & Anr. Vs. Union of India & Ors., AIR 1984 SC 1595; and G.S. Lamba & Ors. Vs. Union of India & Ors., AIR 1985 SC 1019, the Apex Court held that if the quota rule is applicable and for some reasons the quota could not be strictly adhered to and the persons so appointed continuously worked for a long time, those promotees cannot be pushed down in the seniority list on availability of the direct recruits. 70. The facts of the present case reveal that the appointment of the respondents are in accordance with the procedure as prescribed in the service rules. 71. Subsequently, in N.K. Chauhan Vs. State of Gujarat, AIR 1977 SC 251, the Hon'ble Supreme Court held that if it becomes non-feasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it could promote suitable persons in case of compelling circumstances, as public interest does not warrant that improvement work should suffer on account of non-availability of suitable ....
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....endra Chadha's case was cognizant of the fact that the rules empower the Government to relax the rule of appointment. Without reading paragraph 13 and Proposition ''B' and Chadha's ratio together the true import of the proposition would not be appreciated................ If the concerned rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner." The Court also held that the appointment must be in substantive capacity and according to the Rules and within the quota of a substantive vacancy as there is a marked distinction between the appointment in substantive capacity and appointment to the substantive post. The officiation to post must be by an order of appointment and if the appointment on the post is validly made by the competent authority then only an employee becomes a member of the service. If the regularisation of an employee is not in accordance with the statutory provisions, officiation will not be reckoned for the purpose of seniority or promotion. 74. In Para 13 of the Direct Recruit Engineer's case, the Court had approved the ratio of S.B. Patwardhan's (su....
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.... is not made by following the procedure laid down by the ''rules' and the latter expression ''till the regularization of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedl....
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....ked with the recruitment of the promotee officers to the Indian Police Service, to satisfactorily solve the problem, the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together. 80. It was so held observing that seniority, though normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the IPS by promotion, which should be strictly complied with before becoming eligible for consideration for promotion, and are not relaxable. In absence of the Rules, ordinarily the length of service is taken into account. 81. Similar view has been reiterated in A.K. Bhatnagar & Ors. Vs. Union of India & Ors. (1991) 1 SCC 544; Indian Administrative Service (SCS), Association U.P. & Ors. Vs. Union of India & Ors., 1993 Supp (1) SCC 730; and Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors., (2003) 11 SCC 614, observing that seniority is an incidence of service and when rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion. 82. In Dr. M.A. Haque & Ors. Vs. Union of India & Ors., (1993) 2 SCC 213,....
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....ay. 86. Reference may also be made to the decisions of the Supreme Court in the case of Union of India Vs. Joginder Sharma reported in JT 2002 (7) SC 425 and in the case of State of Mizoram and another Vs. Mizoram Engineering Service Association and another reported in (2004) 6 SCC 218 wherein the Supreme Court has clearly held that even in the absence of statutory Rules the ad hoc appointments have to be made in consonance with the provisions of Articles 14 and 16 of the Constitution of India. 87. Thus, the law stands crystallized that a person appointed on ad hoc basis on a post de hors the Rules or without following any procedure prescribed by law, cannot claim the benefit of reckoning the period of service rendered by him as such for the purpose of seniority or promotion. The case of an individual person claiming such a relief is to be examined in the light of the propositions ''A' and ''B' propounded by the Hon'ble Apex Court in Direct Recruit Engineers' case reading it along with the explanation given in paragraph 13 of the said judgment, as also explained subsequently by the Hon'ble Apex Court time and again in Keshav Chandra Joshi and o....
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....ced reliance upon its earlier judgment in R.N. Bose Vs. Union of India & ors., AIR 1970 SC 470, wherein it has been observed as under:- "It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years." 91. In R.S. Makashi Vs. I.M. Menon & ors., AIR 1982 SC 101, the Apex Court considered the entire aspect of limitation, delay and laches in filing the writ petition. The Court also referred to its earlier judgment in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court further considered the issue and held as under:- "We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the responden....
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.... after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time." 94. In B.S. Bajwa Vs. State of Punjab & ors., (1998) 2 SCC 523, the Hon'ble Apex Court has taken the same view, observing as under:- "It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition." 95. In Dinikar Anna Patil & Anr. Vs. State of Maharashtra, (1999) 1 SCC 353, the Hon'ble Supreme Court held that delay and laches in challenging the seniority is always fatal, b....
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....ay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner." 99. Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him." 100. In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystallized. 101. In Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time. 102. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaf....
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....ents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law." 105. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395): "12......In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and (ii)any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations res....
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....uited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression "recruited" should be interpreted to mean when the selection process really started. That apart the said expression "recruited" applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selectio....
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....tutory 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 retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time. 112. Now, in case the seniority between the appellants and the first Respondent is to be determined outside the 1991 Rules, one has to go to the basic principles for determination of seniority. One cardinal principle for determination of seniority is that unless provided for in the rules, seniority can not relate back to a period prior to the date of the incumbent's birth in the service/cadre. 113. To the decisions referred to on this p....
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....rly it was pointed out in A.N. Pathak v. Secretary to the Government - 1987 Supp SCC 763 that slots cannot be kept reserved for the direct recruits for retrospective appointments." 114. The latest pronouncement of Hon'ble the Apex Court decided on 14.02.2017 is Union of India and others v. N.c. Murali and others - MANU/SC/0302/2017, which provides better procedure to be adopted at the time of promotion from two sources. Relevant paragraphs are quoted below:- "10. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava (supra) reported in - (2014) 14 SCC 730 in which Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows: 24. The learned Senior Counsel for the Appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh - (2011) 3 SCC 267 : (2011) 1 SCC (L & S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp. 281-82, para 45) 45.(ii) Inter se seniority in a particular service has to be determined as per the s....
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.... why the sentence starts with the word "if" which denotes that if any case such recruitment is made then the list be prepared accordingly. It expresses that Rule 18 is neither mandatory nor rule of appointment. It is an internal procedure. II. Rule 18 is meant for, "that the prescribed percentage is maintained" - the Rule provides the maintenance of such a list to ascertain the percentage of two categories. III. Such list is required only when "if in any year of recruitment" which denotes that the year of recruitment must be same for the preparation of such list for maintaining the percentage of the cadre. IV. Rule 19 provides that "appointing authority shall make appointment by taking the names of the candidates in the order in which they stand in the list prepared under Rules 15, 16, 17 or 18" - it means appointment can be made from any of the list available before the appointing authority. V. Rule 19(2) provides for preparation of combined list in accordance with Rule 18 when in any year, recruitment are to be made both by direct recruitment and by promotion. Here is not the case where appointment was made relating to the vacancy of one recruitment year. VI. Rule 18 is....
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....commending the names of suitable meritorious candidates according to their choice to the State Government and after medical fitness certified by the Medical Board and police verification the appointment orders were issued. Thus, the procedure as laid down in Rule 15 while recruiting the posts was applied and complied. Similarly, while making appointments under Rule 16 by way of promotion the eligibility list was prepared by the department concerned and it was sent to the Departmental Promotion Committee and after scrutinizing, the matter was finalized on the basis of merit with the consultation of the Public Service Commission and thereafter it was sent to the appointing authority and the order of appointment was issued. In this way, the procedure for appointment was followed and it cannot be said that the appointment so made was dehors the rules. In the matter of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715, Hon'ble the Apex Court has divided it in two categories, (1) appointment made in accordance with the procedure as laid down in the service rules, and (2) appointment dehors the rules (without applying the....
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....ce 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. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors.(supra), the legal position has been settled with regard to inter-se seniority and it was stated that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment. In A. Janardhana v. Union of India-(1983) 3 SCC 601, it was held that no one can claim seniority from a date before his birth in the service. Similarly, in A.N. Pathak v. Secretary to the Government - 1987 Supp SCC 763, it was held that slots cannot be kept reserved. The latest pronouncement in Pawan Pratap Singh v. Reevan Singh - (2011) 3 SCC 267, it was held that the date of entry in a particular service is the safest criteria for fixing the seniority. 122. In a latest decision of Hon'ble the Apex Court in Union of India v. N.C. Murali decided on 14.02.2017 and reported in MANU/SC/0302/2017, it was held that the date of entry in a particular service is the safest crite....
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....7.2010 2122 Sanjay Singh 15.06.2009 2123 Govind Srivastava 24.07.2009 2127 Ajeet Kumar Singh 28.07.2010 2131 Hari Shanker Dubey 28.07.2010 2132 Ashok Kumar 27.02.2009 2153 Bajrangi Yadav 28.07.2010 2141 Vijay Kumar Chaudhary 28.07.2010 2142 Arjun Yadav 28.07.2010 2148 Dadhibal Ram 27.02.2009 2152 Ashok Kumar 27.02.2009 2157 Vinay Kumar Gautam 27.02.2009 2154 These officers were appointed on 27.02.2009 for which recommendation and approval was received from the Public Service Commission on 17.02.2009 and they have been placed as serial no.2116 to 2177 and this is in accordance with determination of seniority rules as discussed above and we find no illegality or irregularity in placing them at serial numbers mentioned in the list. The officers mentioned at serial number 8 of the chart aforesaid were appointed on 28.06.2012 and were placed at serial numbers 2281 to 2362. These include the petitioners of Writ Petition No.18074 (SB) of 2016. The name of the officer with date of entry and serial number is given below:- Name Date of Appointment Serial No. Chandra Shekhar Singh 28.06.2012 2281 Shri Prakash Yadav 28.06.2012 ....
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....ned counsel for the respondents that the requisitions which were sent on 23.01.2009 and 13.02.2009 for appointment by way of promotion were for 232 vacancies while only 222 candidates were selected vide order dated 27.02.2009. Similarly, in the year 2010 in place of 76 vacancies only 74 had been appointed vide order dated 28.07.2010 and in the year 2012 in place of 94, only 58 candidates were appointed. Their claim is that the vacancy which was unfilled should be filled up by the next senior coming within consideration zone and should be given seniority from retrospective date. Above argument is not tenable on the ground that what had not been done at that point of time during the period 2009-2010 should not be done at present by means of order under Article 226 of the Constitution of India and further we have already decided that the seniority of the person cannot be given from the date when he was not appointed and we refrain ourselves to give any direction to the Government to give promotion from any retrospective date or for any notional promotion. The policy of notional promotion is applicable in the cases where the departmental inquiry is pending and the employee is exonerate....
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....d lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy unless rules made subsequently have been expressly given retrospective effect. Since Amendment to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force. II. Where for reasons beyond control, the DPC not be held in a year, even though the vacancies arose during that year, the first DPC that meets thereafter should follow the procedure of determination of actual number of regular vacancies that arose in each of the previous year immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately and consider the officers who would be within the field of ch....