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Wednesday, August 21, 2013

Service matter = Whether the Seniority can be considered from the date of vacancy or from the date of promotion = His application to consider from the date of vacancy is rejected = “20. Seniority – The seniority of persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time. Provided that a person appointed to a post except the post of Associate Professor or Professor on the recommendation of the Commission for which the requisition had been sent to the Commission before the commencement of the Uttar Pradesh State Medical colleges Teacher Service (Second Amendment) Rules, 2005 shall be entitled to seniority from the date of his appointment notwithstanding the fact that a teacher has been given personal promotion to the same post under rule 15 in the same recruitment year.”= Pawan Pratap Singh and others v. Reevan Singh and others,[7] 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: “(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 different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (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 been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” 16. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do. 17. Consequently, the appeal is allowed and the order passed by the High Court is set aside. The parties shall bear their respective costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40666
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL No.  6967   OF 2013
                 (Arising out of SLP (C) No. 31481 of 2010)



State of Uttar Pradesh & Others              ... Appellants

                                   Versus

Ashok Kumar Srivastava & Anr.                ...Respondents

                               J U D G M E N T

Dipak Misra, J.


      Leave granted.

2.    The 1st respondent was appointed as a Lecturer on  23.3.1996  in  “Ras
Shastra” in Rajkiya Ayurvedic College and Chikitsalaya, Lucknow.  The  State
Government vide notification dated 21.12.1990 notified  the  Service  Rules,
namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako  Ki  Seva
Niyamawali, 1990 (for short, “the rules”) for the teachers of Uttar  Pradesh
Ayurvedic Colleges.  
Under the rules, the  promotional  post  from  amongst
the Lecturers is Readers.
As the vacancies in respect of Readers  were  not
filled up, the respondent No. 1  preferred  W.P.  No.  1136  (S/B)  of  2004
before the High Court of Judicature at Allahabad at Lucknow Bench,  Lucknow,
wherein the High Court took note of the statement  by  the  learned  counsel
for the State and directed that it should be in the fitness of  things  that
the Public Service Commission shall make earnest  efforts  to  expedite  the
whole  process  relating  to  promotion  within  a  period  of  six  months.
Eventually, on 15.6.2005 the U.P.  Public  Service  Commission,  (for  short
‘the Commission’), the respondent No. 2 herein,  recommended  the  names  of
six persons for promotion to the post of Readers.  
As far as the  respondent
No. 1 is concerned, he was placed at serial  No.  6  and  it  was  mentioned
therein that the vacancy in respect of which the  1st  respondent  had  been
recommended for promotion had arisen after the  superannuation  of  one  Dr.
Hari Shanker Pandey on 31.7.2001.  
The  state  Government  considering  the
recommendation of the commission issued an office  memorandum  on  16.8.2005
promoting the 1st respondent and given him the posting  in  State  Auyrvedic
College, Lucknow.    
As  the  1st  respondent  was  given  seniority  w.e.f.
16.8.2005 which is the date of passing of the order  of  promotion  he  felt
aggrieved and the said grievance compelled him to prefer  O.A.  No.  134  of
2006  before  the  U.P.  State  Public  Service  Tribunal  (for  short  “the
tribunal”).  
The  tribunal  by  order  dated  2.2.2007  directed  that  the
applicant therein should submit a representation to the Government within  a
period of one month against  the  order  dated  16.08.2005  which  shall  be
disposed of within two months by passing a reasoned order.  In pursuance  of
the aforesaid order the State of U.P. vide letter dated  4.6.2007  sought  a
clarification  from  the  Commission  about  its  recommendation  and  after
receipt  of  the  said  communication  from  the  Commission  and   on   due
deliberation vide  order  dated  2.1.2008  the  representation  of  the  1st
respondent was rejected and it was clearly stated that  seniority  had  been
accorded to him from the date of passing of  the  order  of  promotion  i.e.
16.8.2005.

3.    Grieved by the order rejecting the representation the  respondent  No.
1 preferred W. P. No. 1268 (S/B) of 2008 before the High  Court  contending,
inter alia, that he was entitled to be given  retrospective  seniority  with
effect from the date when the vacancy had arisen.  The stand and stance  put
forth by him was opposed by the State and  its  functionaries  by  filing  a
counter affidavit that as  per  Rule  21  of  1990  rules  the  respondent’s
seniority had been correctly fixed from the date of promotion but  not  from
the date when the vacancy arose.  The 1st respondent brought to  the  notice
of the High Court  that  ten  persons  had  been  conferred  seniority  with
retrospective effect  and  he  had  been  discriminated.    The  High  Court
placing reliance on a three-Judge Bench decision  in  Keshav  Chandra  Joshi
and Others v. Union of India and Others[1] and after  reproducing  paragraph
24 of the said Judgment expressed the opinion that the principle  laid  down
therein was binding and on that  rationale  distinguished  the  decision  in
Nirmal Chandra  Sinha   v.  Union  of  India[2].   The  High  Court  further
proceeded to state that 
the service rules itself empower the  Government  to
decide the seniority from the date of vacancy and  when  ten  promotees  had
been accorded seniority relating back to the date  of  arising  of  vacancy,
denial of the similar benefit to the  petitioner  by  adopting  a  different
criteria amounted to hostile discrimination inviting the  frown  of  Article
14 of the Constitution.  Being of this view, the Division Bench of the  High
Court  quashed  the  impugned  order  dated  2.1.2008   and   directed   the
respondents therein to consider the case of the petitioner and pass a  fresh
order in accordance with the verdict given by it.  The penetrability of  the
aforesaid order  is  called  in  question  by  the  State  of  U.P  and  its
functionaries in this appeal by way of special leave.

4.    It is submitted by Mr. P. N. Misra, learned senior  counsel  appearing
for the appellant that the High Court has flawed by placing reliance on  the
decision  rendered  in  Keshav  Chandra  Joshi  (supra),  as  the  same  was
delivered in a different context and that apart  the  ratio  that  has  been
culled out by the High court from the said pronouncement is not the  correct
one.  The learned senior counsel has criticized the reasoning that when  the
service rule itself empowers the Government to  decide  the  seniority  from
the year of vacancy,  the  Government  is  not  justified  in  deciding  the
seniority of the 1st respondent from the date of promotion to  the  post  of
Reader.   It is his further submission that the High Court has  committed  a
grave factual error by opining that under Rule 21 of  the  1990  rules  when
seniority was accorded to 10 persons form the date of vacancy,  non-granting
of  the  similar  benefit  to  the  respondent  did  tantamount  to  hostile
discrimination, though it had clearly been brought on record that  seniority
of all the promoted candidates was fixed from the date of promotion and  not
from the respective dates when the vacancies had arisen.

5.    Mr. Aseem  Chandra,  learned  counsel  appearing  for  the  contesting
respondent No. 1, per  contra,  urged  that  the  High  Court  has  properly
applied the principle stated in Keshav Chandra Joshi (supra) and same  being
a three-Judge Bench  decision  has  been  aptly  followed  and,  hence,  the
analysis made by the  High  court  cannot  be  found  fault  with.   Learned
counsel would submit as the department had not  filled  up  the  promotional
posts, the respondent was constrained to approach the High Court and on  the
basis of the direction issued by the High court  when  the  posts  had  been
filled up, it was incumbent on the authorities to reckon the seniority  from
the date when the vacancy had occurred.  It is propounded by  him  that  the
language of Rule 21 of the 1990 rules confers  discretionary  power  on  the
State Government and in the case at hand the authorities in  an  inequitable
manner have failed to exercise the  said  power  and,  therefore,  the  High
Court  is  absolutely  justified  in  issuing  directions  for  fixation  of
seniority with retrospective effect and, therefore, the order passed  by  it
is absolutely impregnable.

6.     At the very outset, we think it appropriate to deal  with  the  facet
of hostile discrimination.  The High Court, as is manifest, has opined  that
ten promotees have been accorded seniority relating back to  the  date  when
the vacancies arose.  Reference has been made to Rule 20.  It is  worthy  to
note  that  an  additional  affidavit  has  been  filed  on  behalf  of  the
appellants clarifying the position that ten incumbents to whom  the  benefit
of retrospective seniority was extended, they were selected  under  Rule  15
of Uttar Pradesh State Medical College Teacher  Service  (Second  Amendment)
Rules, 2005.  The said amended rules were brought into  force  on  12.5.2005
to amend the Uttar Pradesh State Medical Colleges  Teachers  Service  Rules,
1990.  Rule 15 of original rules dealt with  procedure  for  recruitment  by
promotion.   The  amended  Rule  15  of  2005  provides  the  procedure  for
recruitment by personal promotion.  Rule 20  of  the  original  rules  dealt
with seniority and it has been amended and in the  present  incarnation  the
said Rule reads as follows: -
      “20. Seniority – The seniority of persons substantively  appointed  in
      any category of posts in the service shall be determined in accordance
      with the Uttar Pradesh Government Servants Seniority Rules,  1991,  as
      amended from time to time.

           Provided that a person appointed to a post except  the  post  of
      Associate  Professor  or  Professor  on  the  recommendation  of   the
      Commission for which the requisition had been sent to  the  Commission
      before the commencement of the Uttar Pradesh  State  Medical  colleges
      Teacher Service (Second Amendment) Rules, 2005 shall  be  entitled  to
      seniority from the date of his appointment  notwithstanding  the  fact
      that a teacher has been given personal  promotion  to  the  same  post
      under rule 15 in the same recruitment year.”


      Thus, on a plain reading of Rule 20 it  is  perceptible  that  certain
categories of incumbents are entitled to seniority from the  date  of  their
appointment notwithstanding the fact that they have been conferred  personal
promotion to the same post under Rule 15 in the same recruitment  year.   It
is evident that benefit of seniority has been given to  the  incumbents  who
are governed by a different set of rules altogether.  The High Court, as  we
notice, has referred to Rule 21 of 1990 rules which governs the case of  the
respondent No. 1.  The said Rule clearly stipulates  that  if  an  order  of
appointment specifies a particular  back  date  with  effect  from  which  a
person is substantively appointed then only that date will be deemed  to  be
the date of the order of substantive appointment. From the narration of  the
aforesaid  facts,  it  is  demonstrable  that  respondent  is  governed   by
different set of rules and the promotions that  have  been  given  to  other
category of teachers are under separate set of rules.   When  the  seniority
is governed by two separate set of rules, it is inconceivable that  one  can
claim seniority on the basis  of  the  rule  relating  to  determination  of
seniority enshrined in the other rules.  The respondent No. 1  is  bound  to
base his case under Rule 21 of the 1990  rules  by  which  he  is  governed.
Thus analysed, we find  that  the  High  Court  has  misdirected  itself  by
recording the finding that  there  has  been  hostile  discrimination.   The
question  of  hostile  discrimination  would  have  arisen  had  the   State
Government extended  the  benefit  under  Rule  21  of  the  1990  rules  to
similarly placed persons governed by the same Rules.   That  being  not  the
position we are afraid that the view expressed by the  High  Court  on  that
score is not sustainable.

7.    In this context, it is seemly to state that the  names  of  candidates
selected by the Selection Committee in its meeting held  on  19.5.2005  were
sent to the Commission.  Be  it  noted,  six  candidates,  namely,  Dr  Hari
Shanker Pandey, Dr. Jai Ram Verma, Dr. S.K. Arya, Dr.  V.P.  Upadhyaya,  Dr.
Lal Bahadur Singh  and  Dr.  Ashok  Kumar  Srivastava  were  found  fit  for
promotion and none of them was given retrospective seniority from  the  date
when the  vacancy  arose.   The  High  Court  has  placed  reliance  on  the
recommendation of the Public Service Commission which was  a  reply  to  the
query dated 4.6.2007.  The commission by letter dated 10.8.2007  had  stated
that recommendation has been made for promoting Dr. Ashok  Kumar  Srivastava
on the post of Reader of Ayurvedic and Unani Colleges  w.e.f.  the  date  of
vacancy created on account of the superannuation of Dr. Hari Shanker  Pandey
on 31.7.2001.   It is condign to  note  here  that  the  commission  in  his
clarificatory recommendation had amended its letter dated 2.7.2007.   It  is
also perceivable  that  the  language  used  in  the  communication  by  the
Commission is not free from ambiguity.  That apart, the discretion, if  any,
rests with the Government.  Be that as it may, the  recommendations  of  the
commission cannot be treated to be binding on the State  Government.    (See
Jatinder Kumar and Others v. State of Punjab[3].)  Thus, it  is  perceptible
that all the incumbents promoted along with the respondent No. 1 were  given
seniority from the date  of  promotion  and  not  from  the  date  when  the
vacancies arose.  Therefore, the factum  of  arbitrary  discrimination  does
not arise and accordingly we are unable to concur with the view of the  High
Court.

8.    Presently, we shall advert to the rule position.   The  relevant  part
of Rule 21 of the 1990 rules by which the 1st  respondent  is  governed,  is
reproduced below:-

      “21.  Seniority – (1) Except as hereinafter provided, the seniority of
      persons in any category of posts shall be determined from the date  of
      the order of substantive appointment and if two or  more  persons  are
      appointed together  by the order in which their names are arranged  in
      the appointment order :

            Provided that if the appointment order  specifies  a  particular
      back date with effect from which a person is substantively  appointed,
      that date will be deemed to  be  the  date  of  order  of  substantive
      appointment and in other cases, it will mean the date of issue of  the
      order :

            Provided further that, if more than one  orders  of  appointment
      are issued in respect of any one selection the seniority shall  be  as
      mentioned in the combined order of appointment issued  under  sub-rule
      (3) of rule 18 :

            Provided also that a candidate recruited directly may  lose  his
      seniority if he fails to join without valid reasons  when  vacancy  is
      offered to him, the decision of the appointing  authority  as  to  the
      validity of reason shall be final.”

9.    On a studied scrutiny of the aforesaid Rule,  it  is  vivid  that  the
seniority of the candidates is to be determined from the date  of  order  of
substantive  appointment.   The  proviso  carves   out   an   exception   by
stipulating that if the appointment order specifies a particular  back  date
with effect from which a person is substantively appointed  that  date  will
be deemed to be the order of substantive appointment otherwise it  would  be
the date of the issue of the order.  The second proviso clarifies  that  the
seniority will be determined when more than one orders  of  appointment  are
issued in respect of any one selection.  From the aforesaid, it is  luminous
that unless otherwise stipulated in the letter of appointment the  seniority
has to be computed from the date of appointment to the post.   In  the  case
at hand, nothing has been stipulated in  the  letter  of  appointment.   The
High  Court  while  granting  retrospective  seniority  with   consequential
benefits has placed reliance on  the  principle  stated  in  Keshav  Chandra
Joshi (supra).  In  the  said  case,  controversy  related  to  fixation  of
seniority between direct recruits and the promotees.   A  three-Judge  Bench
took note of the plea which was to  the  effect  that  promotees  should  be
declared to have been regularly  appointed  from  the  respective  dates  of
their initial  promotion  as  Assistant  Conservators  of  Forest  with  all
consequential benefits.  To substantiate the said plea  it  was  urged  that
though the promotees were appointed on ad hoc basis due to  non-availability
of direct recruits to the vacant posts of Assistant Conservators of  Forest,
yet they were continuing for well over 5 to 12 years  discharging  the  same
duties, drawing the same scale of pay without any reversion and,  therefore,
the posts held by them were not fortuitous, nor stop gap.  In this  backdrop
it was contended that the entire  continuous  length  of  service  from  the
dates of their initial promotion should be counted towards their  seniority.
  In opposition,  it  was  urged  that  the  appointment  of  the  promotees
admittedly being ad hoc, they had no right to the  posts  and  hence,  their
seniority could  be  counted  only  from  the  dates  of  their  substantive
appointment.  The Court after scanning the anatomy of relevant rules  opined
that in order to become a member of the service  he/they  must  satisfy  two
conditions, namely, the appointment must be in substantive capacity and  the
appointment has to be to the post in the  service  according  to  rules  and
within the quota to a substantive  vacancy.   The  learned  Judges  observed
that there exists a marked distinction between appointment in a  substantive
capacity  and  appointment  to  the  substantive   post.    Therefore,   the
membership to the service must be preceded by an  order  of  appointment  to
the  post  validly  made  by  the  Governor.   Then  only   he/they   become
member/members of the service.  The Court  further  stated  that  any  other
construction would be violation of the Rules.    After  so  expressing,  the
Court posed two questions :-

      “When promotees become members of the cadre of Assistant  Conservators
      in accordance with the rules, and whether the entire length of service
      from the date of initial appointments should be counted towards  their
      seniority.”

Thereafter, analyzing the entire gamut of case law,  opined  that  employees
appointed purely on ad  hoc  or  officiating  basis  due  to  administrative
exigencies, even though continued for a  along  spell,  do  not  become  the
members of the service unless the Governor appoints them in accordance  with
the rules, and so they are not entitled to count the entire length of  their
continuous  officiating  or  fortuitous  service  towards  their  seniority.
Eventually, in paragraph 24 which has been reproduced by the High  Court  in
entirety in the impugned order to build the edifice  of  its  reasoning,  in
essence, it has been laid down thus: -
        “It is notorious that confirmation of an employee in a  substantive
      post would take place long years after the retirement. An employee  is
      entitled to be considered for promotion on regular basis to  a  higher
      post if he/she is an approved probationer  in  the  substantive  lower
      post. An officer appointed by promotion in accordance with  Rules  and
      within quota and on declaration of probation is entitled to reckon his
      seniority from the date of promotion and the entire length of service,
      though initially temporary, shall be counted for seniority. Ad hoc  or
      fortuitous appointments on a temporary or stop  gap  basis  cannot  be
      taken into account for the purpose of seniority, even if the appointee
      was subsequently qualified to hold the post on  a  regular  basis.  To
      give benefit of such service would be contrary to  equality  enshrined
      in Article 14 read with Article 16(1) of the Constitution as  unequals
      would be treated as equals. When promotion is outside the  quota,  the
      seniority would be reckoned from the date of the  vacancy  within  the
      quota,  rendering  the  previous  service  fortuitous.  The   previous
      promotion would be regular only from the date of  the  vacancy  within
      the quota and seniority shall be counted from that date and  not  from
      the date of his earlier promotion or subsequent confirmation.”

In the ultimate conclusion the learned Judges ruled as follows:-
        “Accordingly we have no hesitation to hold that the promotees  have
      admittedly been appointed on ad hoc basis as a stop  gap  arrangement,
      though in  substantive  posts,  and  till  the  regular  recruits  are
      appointed in accordance with the rules. Their appointments are de hors
      the rules and until they are appointed by the  Governor  according  to
      rules, they do not become the members of the service in a  substantive
      capacity. Continuous length of ad hoc service from the date of initial
      appointment cannot be counted towards seniority.”

10.   From the aforesaid,  it  is  clear  as  day  that  what  is  meant  by
reckoning of seniority from the date of vacancy in the context of the  facts
of the said judgment has been wholly misunderstood by the  High  Court.   In
the case of  Keshav  Chandra  Joshi  (supra),  the  controversy  that  arose
pertained to the seniority  between  direct  recruits  and  promotees.   The
Court  opined  that  when  promotion  is  given  beyond  the  quota  of  the
promotees, the seniority has  to  be  reckoned  from  the  date  of  vacancy
arising within the  quota  meant  for  the  promotees.   The  Court  further
observed that the previous promotion would be regular only from the date  of
vacancy within the quota and the seniority shall be counted only  from  that
date and not from date of  earlier  promotion  or  subsequent  confirmation.
The factual matrix, the relevant  rules,  the  concepts  of  direct  recruit
quota and  the  promotee  quota  and  the  fortuitous  appointment  and  the
principle stated therein have nothing to  do  with  grant  of  retrospective
seniority in the context of the present case.    Thus, we have no  scintilla
of doubt that the High Court has erroneously applied the ratio laid down  in
Keshav Chandra Joshi  (supra).

11.   The thrust of the matter is how the seniority is to be  determined  in
such circumstances.  In Union of India v. S.S. Uppal and another,[4] it  has
been opined that the seniority of a person is to be determined according  to
the seniority rule applicable on the date of appointment.  It has also  been
observed that weightage in seniority cannot be  given  retrospective  effect
unless it is specifically provided in the rule  in  force  at  the  material
time.

12.   In State of  Karnataka  and  others  v.  C.  Lalitha[5]  it  has  been
observed that it is well settled that seniority should be governed by  rules
and a person should not be allowed to derive any undue advantage over  other
employees, for concept of justice demands that one should get  what  is  due
to him or her as per law.

13.   In State of Uttaranchal and another v. Dinesh Kumar Sharma[6]  it  has
been clearly stated that seniority has to be decided on the basis  of  rules
in force on the date  of  appointment  and  no  retrospective  promotion  or
seniority can be granted from a date when an  employee  has  not  even  been
born in the cadre.

14.   In Nirmal Chandra Singh (supra)  it  has  been  ruled  that  promotion
takes effect from the date of  being  granted  and  not  from  the  date  of
occurrence of vacancy or creation of the post.  It has also been  laid  down
therein that it is settled in law that date of occurrence of vacancy is  not
relevant for the determination of seniority.

15.    Learned senior counsel for the appellants has drawn inspiration  from
the recent authority in
Pawan Pratap Singh and others v.  Reevan  Singh  and others,[7] 
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:

        “(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  different
      sources. Any departure therefrom in  the  statutory  rules,  executive
      instructions or otherwise must be consistent with the requirements  of
      Articles 14 and 16 of the Constitution.

                         xxx         xxx      xxx

        (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 been borne in the cadre and by  doing  so  it  may  adversely
      affect the employees who have been appointed validly in the meantime.”



  16. In  view  of  the  aforesaid  enunciation  of  law,  the  irresistible
      conclusion is that the claim of the first respondent for conferment of
      retrospective seniority is absolutely untenable and the High Court has
      fallen into error by granting him the said benefit and accordingly the
      impugned order deserves to be lancinated and we so do.

  17. Consequently, the appeal is allowed and the order passed by  the  High
      Court is set aside.  The parties shall bear their respective costs.



                                                              …………………………….J.
                                                              [Anil R. Dave]





                                                             ….………………………….J.
                                                               [Dipak Misra]
New Delhi;
August 21, 2013.
-----------------------
[1]    1992 Supp (1) SCC 272
[2]    (2009) 14 SCC 29
[3]    (1985) 1 SCC 122
[4]     (1996) 2 SCC 168
[5]    (2006) 2 SCC 747
[6]    (2007) 1 SCC 683
[7]    (2011) 3 SCC 267

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