TaxTMI 
TaxTMI 
2021 (10) TMI 1068
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....bove the promotees Assistant Commissioners has been rejected. 2. FACTS: Since common questions of fact and law are involved, the facts of the lead petition are mentioned hereinbelow for deciding the controversy involved in these petitions. (i) The petitioners and private respondents are posted as Deputy Commissioner in different districts of Uttar Pradesh in Commercial Tax Department, U.P. after they were promoted in the year 2014 based on seniority list dated 09.08.2012. Services of the petitioners as well as private respondents are governed under U.P. Sales Tax Service Rules, 1983 (hereinafter referred to as 'Rules, 1983') as amended from time to time. (ii) The petitioners are direct recruits to the post of Assistant Commissioner, Commercial Tax whereas private respondents are promotee officers, who were promoted from the post of Sales Tax Officer Grade-II. Post of Deputy Commissioner and above are to be filled up only by promotion. Nomenclature of the Sales Tax Department was changed as Trade Tax Department and, thereafter name was again changed as Commercial Tax Department. (iii) In pursuance to the advertisement issued for holding selection for the Combi....
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....ces 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." (ii) Rule 18 of the Rules, 1983 provides for preparation of combined select list if any year of recruitment appointments are made both by direct recruitment and by promotion. The aforesaid rule provides that select list shall be prepared in such a manner that the prescribed percentage is maintained and first name in the list being of the person appointed by promotion. For ready reference, Rule 18 of Rules, 1983 is extracted hereinbelow: - "18. Combined Select List. - If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combin....
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....d to him. The decision of the appointing authority as to the validity of reason shall be final. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. (v) The State Government framed U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules, 1991') under Article 309 of the Constitution of India for determination of the seniority of persons appointed to the service under the State Government. It is provided that the Rules would be applicable to all government servants in respect of whose recruitment and conditions of service, rules may be or have been framed separately. (vi) Seniority Rules, 1991 have overriding effect so far as determination of seniority of government servants is concerned. Under Rule 4, substantive appointment has been defined as appointment, not being an ad-hoc appointment, on a post in the cadre of Service, made after selection in accordance with the service rules of the respective services. (vii) Rule 5 deals with determination of the seniority where appointments are made by direct recruitment only. Rule 6 deals with the determination ....
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.... of 1: 1 the seniority shall be in the following order- First ... Promotee Second ...Direct recruit 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 recruit Fifth ...Promotee Sixth of eight ...Direct recruit and so on. provided that- (i) Where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota; (ii) Where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees; (iii) Where in accordance with the service rules the unfilled....
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....me year, another selection through promotion on the post of Assistant Commissioner, Commercial Tax from the post of Commercial Tax Officer was held and promotion order was issued on 28.07.2010. Seniority of these officers was determined on the basis of date of substantive appointment and the promotee officers were placed en block above direct requirements who were appointed after date of promotion of the promotees i.e. 28.07.2010 and, accordingly seniority list dated 8.07.2016 was issued. (iv) Seniority list dated 08.07.2016 was challenged before this Court by direct recruitment who were selected in the year 2010 by filing several writ petitions leading Writ Petition No.19231(SB) of 2016 (Shanti Shekhar Singh vs State of U.P. & Ors) praying therein for fixing seniority of direct recruits and promotees in cyclic manner as was done in the case of the present petitioners and private respondents in seniority list dated 09.08.2012. This Court dismissed the said writ petition vide judgment and order dated 04.05.2017 and laid down principles for determining the seniority in para 127 of the said judgment. (v) This Court has held that the seniority list should be given from the date o....
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.... to date on which impugned seniority list was published and not from the date when order was passed on the representation of the petitioner No.8. (ix) It has also been submitted by learned Senior Advocate that settled seniority position should not be unsettled after substantial lapse of time. Anyone who feels aggrieved by the administrative decision affecting one's seniority should act with diligence and promptness. One cannot be allowed to knock the door of the Court after substantial lapse of time of 9 years from the date when the final seniority list dated 09.08.2012 was issued and acted upon subsequently. (x) Under Rule 8(3) of Rules, 1991, phrase 'one selection' would mean selection in the same recruitment year. To substantiate the said submission, learned Senior Advocate has placed reliance on two judgments of this Court reported in 2014 (6) AWC 6389 :Ravindra Nath Pandey vs State of U.P. and 2015 (33) LCD 1609: Anil Kumar vs State of U.P. & Ors. (xi) In respect of the seniority list dated 18.07.2016 from Serial Nos.2116 to 2702, it has been contended that the said seniority list was issued in respect of the persons who have been appointed through direct recruitment ....
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.... the petitioners as well as private respondents even if the writ petitions stand allowed. (xiv) Mr. Shobhit Mohan Shukla, learned counsel has supported the submissions advanced on behalf of Mr. Sandeep Dixit, learned Senior Advocate with respect to gross delay and latches in challenging the seniority list dated 09.08.2012. 5.ANALYSIS:- (i) It is admitted position that the seniority list of the petitioners and private respondents is to be prepared in accordance with Government Servants Seniority Rules, 1991. The question which arises for consideration is whether inter-se seniority of the petitioners and private respondents is to be determined from the date of their substantive appointment in accordance with Rule 8 (1) or it is to be determined in accordance with Sub-Rule 3 of Rule 8 of the Seniority Rules 1991? (ii) From perusal of Rule 8, it is evident that under Sub-Rule 1, seniority is to be determined from the date of the order of substantive appointment unless the appointment order specifies a particular back date with effect from which a person would be deemed to be substantially appointed but in other cases, date of issuance of the order of appointment would be da....
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....strued in such a manner which may not make the rule inoperative. Further external aid from 1992 Service Rules may be taken while interpreting 1991 Seniority Rules for removal of ambiguity and doubt, if any. ............. 28. So far as the mandate contained in Rule 8(3) of 1991 Seniority Rules to the effect where appointments are made both by promotion and direct recruitment on the result of one selection, seniority of promotees and direct recruits will be determined by a cyclic order, is concerned, since admittedly and ordinarily, in one selection, appointment and direct recruitment may not be done, then while construing the provisions harmoniously, the provision contained in Sub Rule (3) may be interpreted relating it to the 'year of recruitment' as defined by Sub Rule (m) of Rule 3 of 1992 Rules. It means all persons who have been appointed by direct recruitment or by promotion in a recruitment year shall be entitled to be considered for seniority in pursuance to 1991 Seniority Rules. The seniority list shall contain the names of officers in order of their recruitment against substantive vacancy relating back to the recruitment year. The appointment should have ....
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....d in a cyclic order (the first being a promotee), as far as may be, in accordance with the quota prescribed for the two sources, though no quota is prescribed for such direct recruitment, nevertheless, considering the peculiar facts of the case and the proviso to Rule 5 (iii) of the Rules 1979, the principle applicable in Rule 8(3) of the Seniority Rules, 1991 should have been applied and based thereon the seniority ought to have been determined. As there cannot be "one selection" for direct recruitment and promotion, therefore, the words mentioned in Rule 8(3) can only mean selection in the same year. In these circumstances the order of rejection can also not be sustained." (x) Thus, one selection occurring in Rule 8(3) of Rules,1991 means in the same year. If appointments are made to a post by direct recruitment and by promotion as per their quota in the same 'recruitment year', then their inter se seniority is to be determined applying the provisions of Rule 8(3) of Rules, 1991. (xi) 'Recruitment year' or 'year of recruitment' is defined under Rules, 1983 to mean 12 months commencing from 1st day of July of calendar year. Rule 3(o) defines 'year of recruitment' which is re....
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....d that a person has been recruited to the service. In the case of direct recruits, the process of recruitment starts with invitation of applications by the Commission, and in case of promotion, it begins with the nomination made by the competent authority by holding D.P.C. However, in both cases final selection gets completed when appropriate orders for appointment are issued. Until final selection is made, and appropriate order is issued for appointment, no person can be said to have been recruited in the service. Persons appointed through direct recruitment and by promotion cannot claim seniority from the date when the vacancies occur in their respective quota, but it must be determined when final recruitment/appointment is made after selection/recruitment process. It is well settled that year in which vacancy occurs is not relevant for the purposes of determining the seniority irrespective of the year when a person is recruited. (xiv) The Supreme Court in the case of Jagdish Ch. Patnaik vs State of Orissa : (1998) 4 SCC 456 in para 32 has explained the aforesaid concept as under:- "32. The next question for consideration is whether the year in which the vacancy accru....
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....ra) has overruled the ratio of the judgment in the case of Union of India vs N.R. Parmar (supra), wherein it was held that seniority of the direct recruits would be of the year when the selection process commenced. The Supreme Court in the case of N.P. Parmar (supra) held that administrative delay in finalization of recruitment leading to delayed appointment should not deprive the individual of his due seniority. Paras 28 and 29 of the judgment in the case of K.Meghachandra Singh(supra) are extracted hereinbelow:- "28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when....
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....me day i.e. 27.02.2009. (xvii) Learned counsel for the petitioners has submitted that seniority list of Assistant Commissioner, Commercial Tax dated 18.07.2016 in respect of the promotees and direct recruits of the year of recruitment year 2010 was prepared as per provisions of Rule 8(1) of the Rules, 1991 on the basis of date of substantive appointment and thereby promotee officers were placed en block above the direct recruits, who were issued appointment orders after the date of promotion of the promotees i.e. 28.07.2010. Several writ petitions were filed by the direct recruits leading Writ Petition No.19231(SB) of 2016: Shanti Shekhar Singh vs State of U.P. & Ors claiming for fixation of seniority between direct recruits and promotees of the year 2010 in cyclic manner in the ratio of 1:1 as provided under Rule 8(3) and as the impugned seniority list dated 09.08.2012 was prepared. (xviii) The Division Bench of this Court vide judgment and order dated 04.05.2017 rejected the claim of the petitioners in the said writ petitions and in para 127 while laying down the principles for determination of seniority held that the seniority had to be given from the date of substantive a....
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....es 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 consistent with the requirements of Articles 14 and 16 of the Constitution. iii. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively. iv. The promotion takes effect from the date of being g....
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....judgment/order of the High Court by the Supreme Court. (xxi) The Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 after taking note of several judgments on this aspect in para 28 held as under:- "28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh case [Ra....
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....erefore, these writ petitions are barred by gross delay and latches, which are liable to be dismissed on this ground alone. (xxvi) It is also well settled that settled seniority of persons in a service should not be disturbed after much delay as seniority in service should not be a variable factor. It would be apt to mention a few judgments on this aspect as under:- (i) State of Orissa vs Pyarimohan Samantaray & Ors: (1977) 3 SCC 396 (para 6); (ii) K.R.Mudgal & Ors vs R. P. Singh & Ors. (1986) 4 SCC 531 (para 7-9); and (iii) Malcom Lawrence Cecil D'souza vs Union of India & Ors : (1976) 1 SCC 599 (para 8-9) (xxvii) In this case, it would be wholly unjustified to unsettle the seniority position of the petitioners and private respondents, which has held the field for long 8-9 years without any challenge and promotions were made to the posts of Dy Commissioner, Commercial Tax from that seniority list. The Supreme Court in the case of K.A. Abdul Majeed Vs State of Kerala & Ors: (2001) 6 SCC 294, held that the seniority assigned to any employee could not be changed after a lapse of 7 years, though even on merit it was found that seniority of the petition....