REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2011
(Arising out of SLP (C) No.5098 of 2007)
Rajendra Pratap Singh Yadav
and Others ...Appellants
Versus
State of U.P. and Others ...Respondents
WITH
CIVIL APPEAL NO. OF 2011
(Arising out of SLP (C) No.7393 of 2007)
Sureshwar ...Appellant
Versus
State of U.P. and Others ...Respondents
WITH
CIVIL APPEAL NOS. OF 2011
(Arising out of SLP (C) Nos.25949-25951 of 2008)
Sudhir Kumar ...Appellant
Versus
Madhukar Dwivedi and Others ...Respondents
1
AND
CIVIL APPEAL NOS. OF 2011
(Arising out of SLP (C) Nos.26022-26024 of 2008)
Rajendra Singh ...Appellants
Versus
Madhukar Dwivedi and Others ...Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. Leave granted in all the Special Leave Petitions.
2. Since common questions of law arise in all these appeals,
therefore, these appeals are being disposed of by a common
judgment. The facts of Civil Appeal No. __________ of 2011
arising out of Special Leave Petition (Civil) No.5098 of 2007
entitled Rajendra Pratap Singh Yadav & Others v. State of
U.P. & Others are recapitulated for the sake of convenience.
2
3. The appellants and respondent No.4 - Rakesh Kumar
Jolly are direct recruits to the Uttar Pradesh Provincial Police
Service. It is stated that the appellants are 4 to 10 years
senior to respondent No. 4, who was selected and appointed in
the year 1994 as Deputy Superintendent of Police in Uttar
Pradesh Provincial Police Service. Respondent No.4 was given
benefit of his past service in the Indian Army as a Short
Service Commissioned Officer of eight years vide order dated
29.11.2004 issued by the State Government. Since
respondent No.4, though junior was placed above the
appellants, therefore, the appellants filed a writ petition before
the High Court of judicature at Allahabad.
4. According to the appellants, respondent No.4 could not
have been given the benefit of past service. The benefit of back
seniority was given to respondent No.4 under the U.P. Non-
technical (Class-II/Group `B') Services (Appointment of
Demobilised Officers) Rules, 1980, as amended in 1990.
Demobilised Officer has been defined in Rule 3(b) of the
Demobilisation Rules, 1980, which reads as under:
3
"3. Definitions - In these rules unless the context
otherwise requires -
(a) ................
(b) "Demobilised Officer" means Disabled
Defence Service Officer, Emergency
Commissioned Officer and the Short
Service Commissioned Officer of the
Armed Forces of the Union who was
commissioned on or after November 1,
1962 but before January 10, 1968 or on
or after December 3, 1971 and released
at any time thereafter.
(c) ................."
5. Respondent No.4 joined the Indian Army in 1981 and
was discharged from the Army in 1986. He was a Short
Service Commissioned Officer. The appellants raised the
following questions in this case.
(1) Whether a Short Service Commissioned
Officer who was commissioned in the
Army during the normal period is entitled
to the certain benefits given to the Army
officers who were commissioned during
the emergency when the nation was at
war with the foreign enemy.
(2) Whether a demobilized Short Service
Commissioned Officer who was
commissioned in the army during normal
period and whose selection in the civil
post is not against the vacancies reserved
for demobilized officers under U.P. Non-
Technical (class-II) Services (Reservation
of Vacancies for Demobilised Officers)
Rules, 1973 (hereinafter referred to as
4
"1973 Rules") is entitled to seniority
under the Uttar Pradesh non-technical
(Class II/Group-B) Services (Appointment
of Demobilised Officers) Rules, 1980
(hereinafter referred to as "1980 Rules")?
(3) Whether a demobilized Short Service
Commissioned Officer who is not selected
for appointment to a non-technical Class-
II/Group-B service or post against the
vacancies reserved for demobilised
officers, as a result of recruitment, the
process of which was concluded or
commenced prior to 6th August, 1978, in
accordance with the provisions of 1973
Rules is entitled to seniority and pay as
meant for the persons appointed against
the vacancies reserved under the 1973
Rules?
(4) Whether when a Short Service
Commissioned Officer who has been
selected and appointed against the
vacancies reserved for such officers under
the Government Order of 1977 which
does not contemplate any seniority for
the past services rendered in the Army, is
entitled to seniority under the 1980
Rules?
(5) When the order of appointment itself
provides that the seniority of the selected
Short Service Commissioned Officer shall
be determined according to the Uttar
Pradesh Police Service Rules, 1942, can
the Government dehors the terms of the
appointment order grant him seniority of
8 years because he happened to be a
Short Service Commissioned Officer?
5
6. The main argument articulated by the appellants is
whether a Short Service Commissioned Officer who was
commissioned in the Army during the normal period is entitled
to the certain benefits given to the Army officers who were
commissioned during the emergency when the nation was at
war with the foreign enemy.
7. It was submitted before the High Court that the person
who had joined the Army after declaration of emergency due to
foreign aggression and those who joined after the war came to
an end stand on an entirely different footing. Those who
joined the Army after revocation of emergency joined the Army
as a career and belong to different class distinct from those
who had joined the Army during war and emergency.
8. It is well known that many persons who joined the Army
service during the foreign aggression could have opted for
other career or other softer career or service but the nation
itself being under peril, impelled by the spirit to serve the
nation, they opted for joining the Army where the risk was
little more. Such persons formed a class by themselves and by
framing Rules an attempt had been made to compensate those
6
who returned from the war if they compete in different
services.
9. The persons who joined the Army service after cessation
of the foreign aggression and revocation of emergency cannot
be treated like persons who have joined the Army during
emergency due to foreign aggression and similar benefits
cannot be given to such persons even by making rules.
10. The appellants also submitted that whenever any
particular period is spent in any service by a person is added
to the service to which such person joined later; it is bound to
affect the seniority of persons who have already entered in the
service. As such, any period of earlier service should be taken
into account for determination of seniority in the latter service
only for special or compelling reasons, which stand test of
reasonableness and on examination, can be held to be free
from arbitrariness. Therefore, the decision of the Government
of India to give seniority to respondent No.4, who did not join
the armed forces during emergency and thus stealing a march
over 181 officers is not only contrary to the Rules but is
7
discriminatory and arbitrary and violative of Articles 14 and
16 of the Constitution of India.
11. According to the appellants, the High Court in the
impugned judgment did not appreciate the controversy
involved in the case in proper perspective and dismissed the
writ petition. The appellants aggrieved by the said judgment
of the High Court filed these appeals before this court.
12. The appellants placed reliance on a number of judgments
of this Court to strengthen their submissions.
13. In Ex-Captain A.S. Parmar and Others v. State of
Haryana and Others 1986 (Supp) SCC 283 this court held
that the seniority of the Military Service rendered by the
Armed Forces Personnel who joined the Military Service during
emergency would only be counted for the purpose of seniority
in the civil service and the Military Service rendered
subsequent to the lifting of emergency cannot be taken into
account for the purpose of reckoning the seniority in the civil
post.
8
14. In Union of India and Others etc. etc. v. Dr. S.
Krishna Murthy and Others etc. etc. (1989) 4 SCC 689
this court observed that the persons who had joined the armed
forces after the declaration of the emergency at the time when
the security of the nation was in peril due to external
aggression had voluntarily offered their services for the
defence of the country. They belong to a separate class and
there is no question of discrimination in giving the benefits of
seniority to them in the civil services by framing Rules.
15. This court in Dhan Singh and others etc. etc. v. State
of Haryana and others 1991 Supp (2) SCC 190 specifically
held that the young persons who had joined the military
service during emergency and those who were already in the
service and due to exigency of the service had been compelled
to serve during the emergency form two distinct classes.
Those who joined the Army before the proclamation of the
emergency had chosen the career voluntarily and their
services during emergency were a matter of course. The
person who got enrolled or commissioned during the
emergency, on the other hand, on account of the call of the
9
nation joined the Army at that critical juncture of national
emergency to save the motherland by taking a greater risk
where danger to life of a member of the armed forces was
higher. They include persons who could have pursued their
studies, acquired higher qualifications and could join a higher
post and those who could have joined the government service
before attaining the maximum age prescribed and thereby
gained seniority in the service. Foregoing all these benefits
and avenues, they joined the Army keeping in view the needs
of the country and assurances contained in conditions of
service in executive instructions. The latter formed a class by
themselves and they cannot be equated with those, who joined
the Army before proclamation of the emergency.
16. In Ram Janam Singh etc. v. State of U.P. and
Another etc. (1994) 2 SCC 622, this court while interpreting
U.P. 1968 Rules, 1973 Rules and 1980 Rules, specifically held
that the persons who had joined the Army after declaration of
the emergency due to foreign aggression and those who joined
after the war cannot stand on the same footing. Those who
joined the Army after revocation of emergency, joined the Army
10
as a career. This court specifically rejected the plea in para 14
to treat the persons who joined the Army service after
cessation of foreign aggression and revocation of emergency to
be treated alike the persons who had joined Army service
during emergency due to foreign aggression. It was also held
that any period of earlier service should be taken into account
for determination of seniority for some very compelling
reasons, which stand the test of reasonableness and on
examination can be held free from arbitrariness.
17. In Chittaranjan Singh Chima and Another v. State
of Punjab and others (1997) 11 SCC 447 this court while
relying on the judgment in the case of Ram Janam Singh
(supra) held that the preferential treatment could be given only
to those who joined armed forces during emergency and grant
of notional seniority in the civil services by taking into account
service rendered in the armed forces cannot be extended to
those who joined armed forces during normal times.
18. This court in State of Punjab and Others v.
Harbhajan Singh and Another (2007) 12 SCC 549, while
relying on judgment in the case of Ram Janam Singh (supra)
11
held that the military service can be counted only if the person
has joined during the emergency and not otherwise.
19. In State of U.P. and another etc. etc. v. Dinkar
Sinha (2007) 10 SCC 548, this court specifically placed
reliance on the judgment in Ram Jam Singh's case (supra) and
held that a person, who joined the Army after the cessation of
emergency cannot be given benefit of seniority of the services
rendered in the Army after selection in the civil services.
20. The appellants also submitted that a demobilized Short
Service Commissioned officer who was commissioned in the
Army during the normal period and whose selection in the civil
post is against the vacancies reserved for demobilized officers
under the 1973 Rules is not entitled to seniority under the
1980 Rules.
21. Under Rule 3 of 1973 Rules, 10% of the permanent
vacancies in all Non-Technical (Class-II) services were reserved
for Emergency Commissioned Officers who joined the armed
forces during the first emergency i.e. 1.11.1962 to 10.1.1968
and during the second emergency i.e. 3.12.1971 to 27.3.1977.
12
Under Rule 1(2), these rules were to remain in force only for a
period of 5 years. Rule 6 provided for seniority and pay and
specifically provided that seniority of the candidates appointed
against the 10% vacancies reserved under Rule 3 should be
determined on the assumption that they entered the service at
their second opportunity of competing of recruitment and they
should be assigned the same year of allotment as successful
candidates of the relevant competitive examination. Therefore,
the benefit of the 1973 Rules cannot be extended after these
Rules ceased to exist on 5.8.1978 and to the persons whose
appointment in the civil posts was not under the vacancies
reserved under Rule 3 of the 1973 Rules.
22. When the 1973 Rules lapsed in 1978 some selections for
the vacancies reserved under the 1973 Rules were concluded
or the selection process was on but the appointments could
not be made. To regularize the selection and appointment of
these officers against the vacancies reserved under the 1973
Rules, a new set of Rules i.e. 1980 Rules were promulgated on
19.8.1980 by the State Government.
13
23. The appellants submitted that only Rules governing
reservation is 1973 Rules, which ceased to exist after five
years, i.e., on 5.8.1978. The appellants also submitted that no
one could be given the benefit of 1973 Rules after 5.8.1978.
The appellants further submitted that in Dilbag Singh v.
State of U.P. and others (1995) 4 SCC 495 this court
observed that 1973 Rules must be deemed to be in operation
till 1980.
24. According to the appellants this is not the correct
position of law, but in any event no one could derive any
benefit after 1980. Respondent No.4 admittedly joined service
much after 1980 and could not have been extended the benefit
of the Rules.
25. According to the appellants, 1980 Rules do not deal with
reservation. They are only Rules for appointment. The
appellants also submitted that under 1980 Rules there is no
provision with respect to reservation of vacancies to the
demobilized officers of armed forces of the Union. These Rules
are not replacement of 1973 Rules as generally misunderstood
and these rules are a new set of rules for the purpose of
14
regularising appointments of demobilized officers whose
selection process had commenced or concluded under the
1973 Rules but appointments were not made before expiry of
the 1973 Rules i.e. 6.8.1978. Nomenclature of the 1980 Rules
is different from the 1973 Rules which explain the purpose of
these rules. The 1973 Rules provide for reservation of
vacancies for the demobilized officers, whereas 1980 Rules
provide for appointment of demobilized officers whose process
of selection as per the 1973 Rules either got completed or
commenced but appointments were not made before the expiry
of the said 1973 Rules. The 1980 Rules have been given
retrospective effect with effect from 6.8.1978 to regularize the
appointment of the demobilized officers whose selection
process was concluded or commenced before 6.8.1978
otherwise appointment orders of those officers after 6.8.1978
to 19.8.1980 would have been invalid who were given benefit
of 1973 Rules. Rule 4 of the 1980 Rules prescribes a cut-off
date which provides that benefits of the Rules shall be
available only against the vacancies reserved for demobilized
officers under 1973 Rules whose process of recruitment
commenced or was completed prior to the 6.8.1978 when the
15
1973 Rules had lapsed. Therefore, a demobilized officer,
whose selection was not against the vacancies reserved under
the 1973 Rules and his process of selection started after
6.8.1978, by no stretch of imagination, is entitled to the
seniority under the 1980 Rules.
26. The appellants also submitted that it is not in dispute
that respondent No. 4 was appointed in the year 1994 against
the 8% vacancies reserved under the Government Order dated
20.8.1977, which provides reservation to other categories of
persons as well. There is no provision in the Government
Order for granting seniority to a Short Service Commissioned
officer for his past military service, who was appointed against
the 8% vacancies reserved for the armed forces personnel as
mentioned in the Government Order. Since the appointment
of respondent No.4 in the U.P. Police Service in the year 1994
was not against the vacancies reserved under the 1973 Rules,
he could not have been granted seniority of eight years by the
State Government.
27. In the case of Rana Randhir Singh and others etc.
etc. v. State of U.P. and others 1989 Supp (1) SCC 615 this
16
Court has specifically held that the seniority of the officers
appointed in the U.P. Police Service after 1980 shall be
determined in accordance with the provisions of Rule 21 of the
U.P. Police Service Rules, 1942. Therefore, the respondent
could not have been assigned seniority of eight years only
because he happened to be a Short Service Commissioned
Officer.
28. In reply to question No. 5 i.e. "when the order of
appointment itself provides that the seniority of the selected
Short Service Commissioned Officer shall be determined
according to the Uttar Pradesh Police Service Rules, 1942, can
the Government dehors the terms of the appointment order
grant him seniority of 8 years because he happened to be a
Short Service Commissioned Officer", the appellants submitted
that it is trite law that the service conditions mentioned in the
order of appointments are binding on the employee and
employer alike if the same are not against the statutory rules
governing the service conditions or public policy or the
provisions of the Constitution of India. The appointment order
of respondent No. 4 specifically mentions that the seniority of
17
respondent No.4and other officers selected shall be determined
in accordance with the U.P. Police Service Rules, 1942. It is
also submitted that having accepted this service condition as
mentioned in the appointment order, the claim of respondent
No.4 for grant of eight years seniority as he was Short Service
Commissioned Officer could not have been allowed.
29. In Dinkar Sinha (supra) the controversy has been set at
rest where this court has categorically held that a person
whose appointment in the civil/police service is not against
the vacancies reserved under the 1973 Rules cannot claim
seniority under the 1980 Rules.
30. The appellants also submitted that the final seniority list
of the officers of the U.P. Police Service was published on
1.2.2000 and respondent No. 4 was placed at Sl. No. 340. He
was satisfied and felt contended with his placement in the
seniority list. Once the seniority list was finalized and no
representation was made by respondent No.4 for years,
therefore, it ought not to have been disturbed. The final
seniority list should not be disturbed or tinkered with unless it
becomes imperative in the larger interest of justice.
18
31. It may be pertinent to mention that Dinkar Sinha, a
Short Service Commissioned Officer, who was appointed as
Deputy Superintendent of Police against the 8% vacancies
reserved under the Government Order dated 20.8.1977 made
a representation claiming seniority under 1980 Rules. The
State Government rejected his representation on 14.9.2000
saying that he was not selected and appointed against the
vacancies reserved under the 1973 Rules. However, the High
Court vide its judgment dated 8.2.2002 allowed the prayer of
Dinkar Sinha.
32. Respondent No.4, after the said judgment by the High
Court and after four years from the date of publication of the
final seniority list, filed a representation before the State
Government that he was similarly placed as Dinkar Sinha and
he should be assigned seniority of 1980 batch. The State
Government rejected the representation of Dinkar Sinha but
obliged respondent No. 4 and vide order dated 29.11.2004
granted him seniority of 1982 batch and thus, he was given a
jump of 181 places. According to the appellants, the long
19
drawn seniority should not have been disturbed after so many
years.
33. It may also be pertinent mention here that Dilbag
Singh's (supra) case was approved in Mahesh Chand and
Others v. State of U.P. and Others (2000) 10 SCC 492.
34. The main submission of the learned counsel for the State
of U.P. has been that individuals who were appointed under
the 10% vacancies are not entitled for the benefit. He placed
reliance on advertisement and the appointment letter of all the
three respondents who got the benefit but their appointments
were not made against 10% vacancies.
35. Dr. Rajiv Dhawan, learned senior counsel appearing in
Civil Appeals No.____________ of 2011 arising out of Special
Leave Petition (Civil) Nos.26022-26024 of 2008 entitled
`Rajendra Singh v. Madhukar Dwivedi and Others',
submitted that Dilbag Singh (supra) has been approved in
Mahesh Chand (supra), which is a three Judges Bench
judgment and binding on this court. He submitted that even
the State of U.P. till 2007 has prepared all lists according to
20
the judgment of Mahesh Chand's (supra) case. He further
submitted that Dinkar Sinha's (supra) judgment is delivered
by two judges and they were bound by the judgment of
Mahesh Chand (supra) and they could not have taken a
contrary view.
36. Dr. Dhawan also placed reliance on the judgment of this
court in the case of Narendra Nath Pandey and Others v.
State of U.P. and others (1988) 3 SCC 527. He submitted
that despite Rules, the executive has the power to grant
reservation by an executive order.
37. Mr. Dinesh Dwivedi, learned senior counsel appearing in
Civil Appeals No.____________of 2011 arising out of Special
Leave Petition (Civil) Nos. 25949-25951 of 2008 entitled
`Sudhir Kumar v. Sri Madhukar Dwivedi etc.' submitted
that Sudhir Kumar had joined the Army on 17.5.1976. On
19.3.1977 appellant was commissioned as a Short Service
Commissioned Officer. On 12.5.1982 he was released from
the Army services. In the year 1984 he appeared in Provincial
Civil Services (Executive) Examination in Uttar Pradesh and
passed in the year 1984. On 7.7.1986 the appellant joined
21
State Civil Services as Deputy Collector. He was confirmed in
the batch of 1985 for the purpose of seniority. On 25.6.1994,
Sudhir Kumar made a representation to the State Government
to accord seniority to him at proper place and the batch in
gradation list following the decisions of this court as accorded
to other similarly situated demobilized officers by the State
Government. Vide order dated 13.3.2003, the State
Government decided the seniority of the appellant and fixed
his name below the name of Santosh Kumar Dwivedi of 1976
batch and above Vinod Kumar Singh of 1977 batch.
38. The appellant being aggrieved by the judgment dated
30.9.2008 delivered by the High Court of judicature at
Allahabad, Lucknow Bench in Writ Petition No.494 (S/B) of
2003 entitled Madhukar Dwivedi v. State of U.P., Writ
Petition No. 504 (S/B) of 2003 entitled Arvind Narain Mishra
and Another v. State of U.P. and others and Writ Petition
No. 1083 (S/B) of 2004 entitled Har Charan Prakash v.
State of U.P. filed Civil Appeals No.____________ of 2011
arising out of Special Leave Petition (Civil) Nos. 25949-25951
of 2008 in this Court.
22
39. According to Mr. Dwivedi the appellant was
commissioned as a Short Service Commissioned Officer on
19.3.1977 during the period when the emergency was invoked
and he ought to have been given the benefit of 1973 Rules. He
cannot be denied the benefit on the ground that he was not
appointed under the 10% vacancy quota or 1973 Rules.
40. Mr. Dwivedi placed reliance on Ram Janam Singh
(supra) and particularly laid stress on para 12 of the judgment
which reads as under:
"... ... ...we fail to understand as to how persons
who joined after the emergency was over i.e. after
January 10, 1968 and before December 3, 1971
when another emergency was imposed in view of the
foreign aggression, can be treated on a par or on the
same level. It need not be pointed out that such
persons were on the lookout for a career and joined
the Armed Forces of their own volition. It can be
presumed that they were prepared for the normal
risk in the service of the Armed Forces. Those who
joined Armed Forces after November 1, 1962 or
December 3, 1971, not only joined Armed Forces
but joined a war which was being fought by the
nation. If the benefits extended to such persons who
were commissioned during national emergencies are
extended even to the members of the Armed Forces
who joined during normal times, members of the
Civil Services can make legitimate grievance that
their seniority is being affected by persons recruited
to the service after they had entered in the said
23
service without there being any rational basis for
the same."
41. We have carefully gone through the pleadings of these
appeals and perused relevant judgments delivered by this
court.
42. The 1973 Rules ceased to exist after five years i.e. on
5.8.1978. The life of the Rules, according to the judgment
delivered in Dilbag Singh (Supra) was extended upto 1980. In
any event, no one could be given benefit of 1973 Rules after
1980. Admittedly, respondent No. 4 was appointed in 1994
and the benefit could not have been extended to respondent
No.4.
43. Same Rules came up for consideration in Dinkar
Sinha's case (supra) wherein the Court observed as under:
"31. The 1973 Rules was a temporary statute. It
died its natural death on expiry thereof. The 1980
Rules does not contain any repeal and saving
clause. The provisions of the relevant provisions of
the General Clauses Act will, thus, have no
application. Once a statute expires by efflux of time,
the question of giving effect to a right arising
thereunder may not arise. In any event, in this case,
no such right accrued to the respondent.
Reservation to the extent of 2% might have been
24
fixed by reason of a government order issued in the
year 1977 but the same had nothing to do with the
1973 Rules or with the 1980 Rules. Provision for
reservation made in general by the State in exercise
of its executive power could not have conferred a
benefit in terms of the provisions of a rule which
seeks to apply to a particular category of employees
in the service.
32. The 1980 Rules neither repealed nor
replaced the 1973 Rules. The question of
continuation of the 1973 Rules by the 1980 Rules,
thus, did not and could not arise. The 1980 Rules
provided for a new set of rules. They were to have a
limited application viz. regularisation of
appointment of Demobilised Officers."
44. Consequently, persons who joined the Army after the
emergency was over cannot also be given the benefit which
was extended to those persons who joined the Army during
emergency. Those who joined the Army during the period of
emergency virtually joined the war which was being fought by
the nation. The benefit extended to such persons cannot be
extended to the members of the armed forces who had joined
the Army during normal periods.
45. Persons who have joined the Army during the foreign
aggression could have opted for other career or softer career or
service but the nation itself being under peril, impelled by the
25
spirit to serve the nation, they opted for joining the Army
where the risk was much more. Such persons formed a class
by themselves and the benefit extended to them cannot be
extended to the persons who joined the Army during the
normal times. The differential treatment given to those who
joined the Army during emergency cannot be termed as
discriminatory and arbitrary.
46. Respondent No.4, after the judgment of the High Court
and after four years from the date of publication of the final
list, filed a representation before the State Government that he
be similarly placed as Dinkar Sinha as he being assigned
seniority of 1980 batch. The State Government granted
seniority to respondent No. 4 and he was given a jump of 181
places and the final seniority list was disturbed by the State.
47. The appointment of respondent no.4 was not against the
vacancies reserved under the 1973 Rules, therefore, he cannot
get benefit of 1973 Rules.
26
48. In Rana Randhir Singh's case (supra), this Court
clearly held that the seniority of the officers appointed in the
U.P. Police Service after 1980 shall be determined in
accordance with the provisions of Rule 21 of the U.P. Police
Service Rules, 1942. Respondent no.4 was appointed in 1994,
therefore, the 1942 Rules would be applicable to him as the
said Rules are still in force.
49. Respondent no.4 did not join the armed forces during
emergency and thus stealing a march over 181 officers is not
only contrary to the Rules but is discretionary and arbitrary
and violative of Articles 14 and 16 of the Constitution.
50. We are clearly of the view that respondent No.4 and
similarly placed employees could not have been given the
benefit of the 1973 Rules. These Rules were not in existence
when they were appointed. Therefore, they could not have
derived any benefit from the 1973 Rules.
51. Consequently, we are constrained to set aside the
impugned judgment of the High Court. We have no hesitation
in holding that respondent No.4 - Rakesh Kumar Jolly,
27
Rajendra Singh and Sudhir Kumar were wrongly given the
benefit of the 1973 Rules.
52. We deem it appropriate to reiterate that in service
jurisprudence there is immense sanctity of a final seniority
list. The seniority list once published cannot be disturbed at
the behest of person who chose not to challenge it for four
years. The sanctity of the seniority list must be maintained
unless there are very compelling reasons to do so in order to
do substantial justice. This is imperative to avoid avoidable
litigation and unrest and chaos in the services.
53. We, therefore, direct the respondent-State of U.P. to
prepare a fresh seniority list and place all three of them on
their respective positions as they had not received the benefit
of 1973 seniority.
54. There has been a considerable delay in this matter,
therefore, we direct the State of U.P. to publish a fresh
seniority list as expeditiously as possible, in any event within
two months from the date of this judgment.
28
55. In the facts and circumstances of this case we make it
clear that the financial benefits which have already been
extended to respondent No. 4 - Rakesh Kumar Jolly, Rajendra
Singh and Sudhir Kumar may not be recovered from them.
56. These appeals are accordingly disposed of in terms of the
aforesaid directions. In the facts and circumstances of the
case, the parties are left to bear their own costs.
...........................................J.
(DALVEER BHANDARI)
...........................................J.
(DEEPAK VERMA)
New Delhi;
July 5, 2011
29
