Pawan Pratap Singh & Ors vs Reevan Singh & Ors

Pawan Pratap Singh & Ors. ...... Appellants

Vs.

Reevan Singh & Ors. ...... Respondents

WITH

CIVIL APPEAL NO. 9907 OF 2003

AND

CIVIL APPEAL NO. 9908 OF 2003

JUDGMENT

R.M. LODHA, J.

In this group of three appeals, by special leave, the

question presented for consideration before this Court relates to

determination of seniority between two groups of direct recruits to the

1

posts of Deputy Jailor (Group `C' post), one appointed in 1991

through the selection made by Uttar Pradesh Subordinate Services

Selection Commission (for short, `Selection Commission') and the

other in 1994 by Uttar Pradesh Public Service Commission (for short,

`UPPSC').

2. The Uttar Pradesh Jail Executive Subordinate (Non-

Gazetted) Service Rules, 1980 (for short, `1980 Rules') were framed

by the Governor of the State in exercise of the powers conferred by

the proviso to Article 309 of the Constitution which were published in

U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980

Rules deals with the recruitment to the posts of Deputy Jailor and

Assistant Jailor in the service. The recruitment to the posts of

Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by

promotion from amongst the permanent Assistant Jailors. Rule 15

provides for procedure for direct recruitment to the posts of Deputy

Jailor and Assistant Jailor. It reads thus :

"15. Procedure for direct recruitment to the posts of

Deputy Jailor, Assistant Jailor.--(1) Applications for

permission to appear in the competitive examination

shall be called by the Commission in the prescribed

form, which may be obtained from the Secretary to the

Commission on payment.

(2) No candidate shall be admitted to the

examination unless he holds a certificate of admission

issued by the Commission.

2

(3) After the results of the written examination

have been received and tabulated, the Commission

shall having regard to the need for securing due

representation of the candidates belonging to the

Scheduled Castes, Scheduled Tribes and others under

Rule 6, summon for interview such number of

candidates as, on the result of the written examination,

have come up to the standard fixed by the Commission

in this respect. The marks awarded to each candidate at

the interview shall be added to the marks obtained by

him in the written examination.

(4) The Commission shall prepare a list of

candidates in order of their proficiency as disclosed by

the aggregate of marks obtained by each candidate at

the written examination and interview and recommend

such number of candidates as they consider fit for

appointment. If two or more candidates obtain equal

marks in the aggregate, the name of the candidate

obtaining higher mark in the written examination shall

be placed higher in the list. The number of names in the

list shall be larger, but not larger by more than 25 per

cent of the number of vacancies. The Commission shall

forward the list to the appointing authority."

3. Part-VI of the 1980 Rules deals with appointment,

probation, confirmation and seniority. For the purposes of these

appeals, rule 22 of the 1980 Rules needs to be referred which is as

follows:

"22. Seniority.--Seniority in any category of posts in the

service shall be determined from the date of substantive

appointment and if two or more persons are appointed

together, from the order in which their names are

arranged in the appointment order :

3

Provided that--

(1) the inter se seniority of persons directly

appointed to the service shall be the same as

determined at the time of selection.

(2) the inter se seniority of persons appointed

to the posts of Deputy Jailor by probation shall be the

same as it was in the substantive post held by them at

the time of promotion; and

........."

4. On December 26, 1987, the UPPSC published an

advertisement (No. A-5/E-4/87-88) for holding the Combined Lower

Subordinate Services Examination, 1987. It was mentioned in the

advertisement that the number of vacancies to be filled on the result

of the examination is expected to be approximately 600 which

included the vacancies in the cadre of Deputy Jailor. There is

dispute of fact about actual number of vacancies in the cadre of

Deputy Jailor notified by the UPPSC in the above advertisement but

the stand of the first respondent that 114 vacancies of Deputy Jailors

were notified may be assumed as fact for the purpose of these

appeals.

5. The Uttar Pradesh Subordinate Services Selection

(Commission) Act, 1988 (for short, `1988 Act') was enacted by the

U.P. Legislature to establish a Subordinate Services Selection

4

Commission for direct recruitment to all Group `C' posts in the State

of U.P. The 1988 Act came into force on February 15, 1988.

6. On November 25, 1989, a notification was issued by the

Governor of Uttar Pradesh clarifying that the vacancies already

referred to the UPPSC shall be filled on the recommendation of the

UPPSC alone.

7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated

December 26, 1987, the UPPSC conducted the preliminary

examinations on September 24, 1989.

8. On October 27, 1990, the Selection Commission

advertised and notified that for filling 60 posts of Deputy Jailor, a

competitive examination, `U.P. Karapal (Deputy Jailor) Examination,

1990' shall be held. The examination was held on due date and after

holding oral interview, the Selection Commission sent a select list to

the State Government in 1991 for issuance of appointment letters.

9. On November 23, 1991, the State Government issued

appointment letters to the candidates selected by the Selection

Commission. The present appellants in Civil Appeal No. 9906 of 2003

and Civil Appeal No. 9908 of 2003 were amongst those who were

appointed by the State Government pursuant to the selection made

by the Selection Commission.

5

10. In 1991, the UPPSC also conducted the main

examination for filling up different posts of Group `C' including the

posts of direct recruitment of Deputy Jailor. The result thereof was

declared on July 27, 1993. The UPPSC, then, sent the select list to

the State Government. The State Government issued appointment

letters to the selected candidates on April 26, 1994. The private first

respondent was one of them.

11. The Uttar Pradesh Government Servants Seniority Rules,

1991 (for short, `1991 Rules') were framed under the proviso to

Article 309 of the Constitution effective from March 20, 1991. The

1991 Rules were made applicable 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 and had overriding effect to other service rules.

Rule 5 and rule 8 of the 1991 Rules which are relevant for the

purposes of these appeals read as under:

"5. Seniority where appointments by direct

recruitment only.--Where according to the service rules

appointments are to be made only by the direct

recruitment the seniority inter se of the persons

appointed on the result of any one selection, shall be

the same as it is shown in the merit list prepared by the

Commission or the Committee, as the case may be:

Provided that a candidate recruited directly may

lose his seniority, if he fails to join without valid reasons

6

when vacancy is offered to him, the decision of the

appointing authority as to the validity of reasons, shall

be final:

Provided further that the persons appointed on

the result of a subsequent selection shall be junior to

the persons appointed on the result of a previous

selection.

Explanation.--Where in the same year separate

selections for regular and emergency recruitment are

made, the selection for regular recruitment shall be

deemed to be the previous selection.

............."

8. Seniority where appointments by promotion and

direct recruitment.--(1) 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 :

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 issuance of the

order:

Provided further 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 reasons, shall

be final.

(2) The seniority inter se of persons appointed on the

result of any one selection,--

(a) through direct recruitment, shall be the

same as it is shown in the merit list prepared by the

Commission or by the Committee, as the case may be;

7

(b) by promotion, shall be as determined in

accordance with the principles laid down in Rule 6 or

Rule 7, as the case may be, according as the promotion

are to be made from a single feeding cadre or several

feeding cadres.

(3) Where appointments are made both by

promotion and direct recruitment on the result of any

one selection the seniority of promotees vis-`-vis direct

recruits shall be determined in a cyclic order (the first

being a promotee) so far as may be, in accordance with

the quota prescribed for the two sources.

Illustrations.--(1) Where the quota of promotes

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 to 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;

8

(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 vacancies from any source could, in

the circumstances mentioned in the relevant

service rules be filled from the other source

and appointment in excess of quota are so

made, the persons so appointed shall get the

seniority of that very year as if they are

appointed against the vacancies of their

quota."

The parties are in agreement that 1991 Rules were in existence when

the appointments were made to the posts of Deputy Jailor in 1991

and 1994.

12. On August 29, 1995, a tentative seniority list of Deputy

Jailors was notified by the Inspector General (Prisons) - the

appointing authority - and objections were called for from the

concerned officers. In that list, the candidates appointed in 1991 were

shown senior to the candidates appointed in 1994. The litigation

between the two groups started with this list. The tentative seniority

list dated August 29, 1995 came to be challenged before Allahabad

9

High Court in three writ petitions; one by Bholanath Mishra (Writ

Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ

Petition No. 13138/2000) and the third by the first respondent herein

Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed

by Samar Bahadur Singh was dismissed by the High Court on the

ground of availability of alternative remedy before the State Service

Tribunal. The writ petition filed by the first respondent herein was

allowed on December 2, 2002 and the High Court directed the State

of Uttar Pradesh and the Director General (Prisons), Lucknow to treat

the appointees of 1994 senior to 1991 appointees. The contention

raised by the writ petitioner (first respondent herein) before the High

Court was that in view of the second proviso to rule 5 of 1991 Rules,

the Deputy Jailors who were selected in the selection which

commenced in 1987 must be treated senior to those selected

pursuant to the selection that commenced in 1990. The Division

Bench agreed with this contention and held as follows:

".........In our opinion the correct interpretation of the

proviso to Rule 5 of the U.P. Govt. Servant Rules, 1991

is that persons like the petitioner who were selected in

the selection process which commenced in 1987 should

be treated as senior to there (sic) selected in selection

process which commenced in 1990."

1

While construing the words `appointed on the result of a subsequent

selection' in second proviso to rule 5 of the 1991 Rules, the High

Court held as under :

"It may be noted from the language used in the proviso

to Rule 5 that a distinction has been made between

appointment and selection. The words "appointed on

the result of a subsequent selection" clearly indicate that

for the purpose of the proviso appointment is different

from selection. Hence even if persons selected on the

basis of the selection which commenced in 1990 were

given appointment before giving appointment to the

petitioner and others similarly situate the latter will be

senior to the former because proviso to Rule 5 treats

selection different from appointment. Had that not been

so the language of the provision would have been

different?

The High Court went on to observe further as under :

"There is no dispute that the process of selection of the

petitioner and others similarly situate had begun in

1987 whereas selection in which the newly amended

(sic) respondent nos. 3 and 4 and others situated similar

to them had begun in 1990. Thus the selection process

of the petitioner and others similarly situate had begun

three years prior to the beginning of the selection of

respondent nos. 3 and 4 and others similarly situate. It

was no fault of the petitioner and others similarly situate

that their selection was prolonged far as much as six

years, whereas the selection of respondent no. 3 and 4

and others similarly situate was completed in just one

year."

1

The High Court held that 1991 Rules will prevail over 1980 Rules, if

there is any conflict between the two Rules. It held :

".........In the present case the proviso to Rule 5 of the

1991 Rules makes it clear that appointment is not to be

treated as part of the selection because the words used

in the provision are "appointed on the result of a

subsequent selection". The petitioner and others

similarly situate were appointed against the vacancy

which existed in 1987 while the selection of respondent

nos. 3 and 4 and others similarly situate by the U.P.

Subordinate Selection Commission were made against

vacancies which existed in 1990. In our opinion the

petitioner and others similarly situate should not suffer,

for no fault of theirs."

13. Being not satisfied with the judgment of the High Court

dated December 2, 2002, three appeals, by special leave, have

been filed, one by the State of Uttar Pradesh and the other two by

1991 appointees.

14. We have heard M/s. P.N. Mishra, Vijay Hansaria and

Subodh Markandey, senior counsel for the appellants and Shri

Pramod Swaroop, senior counsel for Respondent No. 1. On behalf of

the appellants, it is urged that rule 5 of the 1991 Rules has no

application as it is applicable where the service rules provide for

appointment by direct recruitment only. Since the posts of Deputy

Jailor, as per 1980 Rules, are to be filled by direct recruitment as well

as by promotion, the mode and manner of determination of seniority

1

provided in rule 5 cannot be applied and instead rule 8 of the 1991

Rules would be applicable for the purposes of determination of

seniority.

15. Learned senior counsel for the appellants submitted in the

alternative that even if rule 5 of the 1991 Rules is held to be

applicable, second proviso appended to rule 5 does not contemplate

that the persons appointed pursuant to the result of a subsequent

selection (although their date of substantive appointment is earlier in

point of time) shall rank junior to the persons appointed later

because their process of selection was initiated earlier. It was

submitted that the word `result' in second proviso of rule 5 of the

1991 Rules is not without significance. Our attention was drawn to

rule 4 (h) of the 1991 Rules that defines the expression `substantive

appointment' and rule 9 which provides for preparation of seniority

list and it was submitted that the private appellants were substantively

appointed in 1991 in the cadre of Deputy Jailors by following the

procedure and in accordance with the 1980 Rules much before the

1994 appointees. It was argued on behalf of the appellants that the

year of vacancy against which a particular person is appointed is

wholly irrelevant for the purpose of determination of seniority and

seniority cannot relate back to the date of vacancy. In this regard,

1

reliance was placed upon the decisions of this Court in : (i) Jagdish

Ch. Patnaik & Ors. v. State of Orissa & Ors.1; (ii) Ajit Kumar Rath v.

State of Orissa & Ors.2; (iii) Uttaranchal Forest Rangers' Assn.

(Direct Recruit) & Ors. v. State of U.P. & Ors.3 and (iv) State of

Uttaranchal & Anr. v. Dinesh Kumar Sharma4.

16. Learned senior counsel for the appellants also contended

that the High Court erred in invoking Article 226 of the Constitution in

the matter when the writ petition filed by Samar Bahadur Singh (Writ

Petition No. 13138/2000) was dismissed on the ground of alternative

remedy. In this regard, the Constitution Bench decision of this Court

in L. Chandra Kumar v. Union of India & Ors.5 was referred.

17. On the other hand, Mr. Pramod Swaroop, learned senior

counsel for the contesting first respondent stoutly defended the

judgment of the High Court. He argued that the High Court was

justified in relying upon second proviso to rule 5 of the 1991 Rules

and holding that the candidates appointed on the basis of result of

earlier selection process must rank senior to the candidates who

were appointed on the basis of the result of subsequent selection. He

would submit that the UPPSC started selection process for filling 114

1 (1998) 4 SCC 456

2 (1999) 9 SCC 596

3 (2006) 10 SCC 346

4 (2007) 1 SCC 683

5 (1997) 3 SCC 261

1

posts of Deputy Jailor in 1987; it was in this process of selection that

the contesting private respondent was selected and appointed

(although in the year 1994) and insofar as the 1991 appointees are

concerned they underwent the subsequent selection process which

started in the year 1990. Mr. Pramod Swaroop contended that 1991

Rules have the overriding effect and the seniority amongst 1991 and

1994 appointees has to be determined with reference to rule 5 of

1991 Rules. According to him, the expression `selection' in second

proviso to rule 5 cannot be construed to mean only the `final

selection' and since the process of selection involves several steps

which begins with the issuance of the advertisement and ends with

the preparation of select list, the expression `result of selection'

means the result of entire selection process. In this regard, heavy

reliance was placed by him on few decisions of this Court, namely, (i)

A.P. Public Service Commission, Hyderabad & Anr. v. B. Sarat

Chandra & Ors.6 (ii) State of U.P. v. Rafiquddin & Ors.7; (iii) Surendra

Narain Singh & Ors. v. State of Bihar & Ors.8 and (iv) Balwant Singh

Narwal & Ors. v. State of Haryana & Ors.9.

6 (1990) 2 SCC 669

7 1987 (Suppl.) SCC 401

8 (1998) 5 SCC 246

9 (2008) 7 SCC 728

1

18. It must be stated immediately that the recruitment to the

posts of Deputy Jailor in the State of Uttar Pradesh is governed by

the 1980 Rules which have been framed by the Governor in exercise

of the powers conferred by the proviso to Article 309 of the

Constitution. 1980 Rules provide for cadre of service, procedure for

recruitment to the post of Deputy Jailor, reservation, academic

qualifications, determination of vacancies, appointment, probation,

confirmation and inter se seniority of persons appointed to the

service. However, by subsequent Rules, namely, 1991 Rules which

too were made by the Governor under the proviso to Article 309 of

the Constitution, comprehensive provisions have been made for the

determination of seniority of all government servants in the State of

Uttar Pradesh. Rule 2 of the 1991 Rules says that these rules 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 and rule

3 gives to the 1991 Rules overriding effect notwithstanding anything

to the contrary contained in earlier service rules. In this view of the

matter, inter se seniority amongst 1991 and 1994 appointees by

direct recruitment has to be determined under the 1991 Rules and

rule 22 of the 1980 Rules has to give way to the 1991 Rules.

1

19. Now, insofar as 1991 Rules are concerned, the said

Rules provide for determination of seniority in relation to different

categories. Rule 5 makes provision for determination of seniority in

cases where according to service rules, appointments are made only

by the direct recruitment. It would be seen that 1980 Rules are the

relevant service rules for appointment to the posts of Deputy Jailor.

As per rule 5 of the 1980 Rules, there are two sources of recruitment

to the post of Deputy Jailor; one, by direct recruitment and the other,

by promotion from amongst the permanent Assistant Jailors in ratio of

50% each. The word `only' in rule 5 of the 1991 Rules is of

significance and it becomes clear therefrom that rule 5 of the 1991

Rules has no application at all for determination of inter se seniority of

the 1991 and 1994 appointees because 1980 Rules provide for

appointment to the posts of Deputy Jailor by direct recruitment as well

as by promotion. It is only where service rules in the State of U.P.

provide for appointments by direct recruitment alone that rule 5 of

1991 Rules comes into play for determination of seniority and not

otherwise. The reliance placed by the High Court upon second

proviso to rule 5 of the 1991 Rules for determination of inter se

seniority amongst 1991 and 1994 appointees is, thus, misplaced.

1

The High Court fell into grave error in not appreciating that rule 5 of

the 1991 Rules operates where service rules provide for

appointments by direct recruitment only. Rule 6 and rule 7 of the

1991 Rules also have no application as these rules provide for

determination of seniority where appointments are made by

promotion only from a single feeding cadre or only from several

feeding cadres. These appeals are not concerned with the

determination of inter se seniority between the promotees. Rule 8 of

the 1991 Rules makes a provision for determination of seniority

where according to service rules appointments are made both by

promotion and by direct recruitment. The marginal note of rule 8

`seniority where appointments by promotion and direct recruitment'

and the body of sub-rule (1) of rule 8 that provides, `where according

to the service rules appointments are made both by promotion and by

direct recruitment', leave no manner of doubt that rule 8 of the 1991

Rules would govern the controversy in the present case since 1980

Rules clearly provide for appointments to the posts of Deputy Jailor

by two sources i.e., by direct recruitment as well as by promotion. It is

true that the controversy in hand relates to determination of seniority

between two groups of direct recruits to the posts of Deputy Jailor,

one appointed in 1991 through the selection made by the Selection

1

Commission and the other in 1994 by the UPPSC and the

controversy does not relate to determination of inter se seniority

between direct recruitees and the promotees, but that does not take

away the applicability of rule 8 of the 1991 Rules. It is so because in

the 1991 Rules, the basis of categorization for the purpose of

determination of seniority is the method and manner for appointments

in the service rules. It is in this view of the matter that rule 5, rule 6,

rule 7 and rule 8 of the 1991 Rules provide for determination of

seniority amongst different categories of appointments made under

the service rules. Once it is held that rule 8 is applicable for

determination of inter se seniority amongst 1991 and 1994 recruitees

to the posts of Deputy Jailor, it is clear that their seniority has to be

determined on the basis of their substantive appointments. Insofar as

the present controversy is concerned, none of the provisos to sub-rule

(1) is attracted since the appointment orders of 1994 appointees do not

specify the back date nor these appeals are concerned with a situation

where 1991 appointees failed to join on time. These appeals are also

not concerned with seniority inter se of persons appointed on the

result of one selection through direct recruitment or through direct

recruitment and promotion in one selection and, therefore, provisions

of sub-rules (2) and (3) of rule 8 are also not attracted. Sub-rule (1)

1

of rule 8 in unambiguous terms states that the seniority of persons,

subject to the provisions of the sub-rules (2) and (3), shall be

determined from the date of the order of their substantive

appointments. Rule 4(h) defines `substantive appointment' as an

appointment, not being an ad-hoc appointment, on a post in the cadre

of service, made after selection in accordance with the service rules

relating to that service. It, thus, becomes abundantly clear that for

determination of inter se seniority between the two rival groups (1991

and 1994 appointees by direct recruitment) what is relevant is the

date of the order of their substantive appointment and since the

substantive appointment of 1991 appointees is much prior in point of

time, they must rank senior to the 1994 appointees.

20. It is now appropriate to consider the authorities cited at

the Bar and a couple of other decisions. In Rafiquddin7, this Court in

the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made

general observations that seniority in the service is determined on the

basis of the year of the competitive examination irrespective of the

date of appointment and inter se seniority of candidates recruited to

the service is determined on the basis of their ranking in the merit list.

2

21. In A.P. Public Service Commission6, this Court was

concerned with the Andhra Pradesh Police Service Rules, 1966.

While dealing with the word `selection' in rule 5(A)(i) of the said

Rules, this Court observed as follows :

"If the word `selection' is understood in a sense meaning

thereby only the final act of selecting candidates with

preparation of the list for appointment, then the

conclusion of the Tribunal may not be unjustified. But

round phrases cannot give square answers. Before

accepting that meaning, we must see the

consequences, anomalies and uncertainties that it may

lead to. The Tribunal in fact does not dispute that the

process of selection begins with the issuance of

advertisement and ends with the preparation of select

list for appointment. Indeed, it consists of various steps

like inviting applications, scrutiny of applications,

rejection of defective applications or elimination of

ineligible candidates, conducting examinations, calling

for interview or viva voce and preparation of list of

successful candidates for appointment. Rule 3 of the

Rules of Procedure of the Public Service Commission is

also indicative of all these steps. When such are the

different steps in the process of selection, the minimum

or maximum age for suitability of a candidate for

appointment cannot be allowed to depend upon any

fluctuating or uncertain date. If the final stage of

selection is delayed and more often it happens for

various reasons, the candidates who are eligible on the

date of application may find themselves eliminated at

the final stage for no fault of theirs. The date to attain

the minimum or maximum age must, therefore, be

specific, and determinate as on a particular date for

candidates to apply and for recruiting agency to

scrutinise applications. It would be, therefore,

unreasonable to construe the word selection only as the

factum of preparation of the select list. Nothing so bad

would have been intended by the rule making authority."

2

Pertinently, the aforesaid observations of this Court with regard to the

word `selection' are in the context of the age eligibility as the provision

under consideration read, `has completed the age of 21 years and

had not completed the age of 26 years on the first day of July of the

year in which the selection is made'. The aforesaid observations,

therefore, have to be read in the context of the provision under

consideration before this Court.

22. In Ram Janam Singh v. State of U.P. and Anr.10 , this

Court reiterated that the date of entry into a service 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. It was observed that this is consistent with

the requirement of Articles 14 and 16 of the Constitution. It was,

however, observed that if the circumstances so require, a group of

persons can be treated a class separate from the rest for any

preferential or beneficial treatment while fixing their seniority, but,

normally such classification should be by statutory rule or rules

framed under Article 309.

23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik1,

while construing the word `recruited' occurring in Orissa Service of

10 (1994) 2 SCC 622

2

Engineers Rules, 1941, held that a direct recruit is recruited when

formal appointment order is issued and not when recruitment process

is initiated. This is what this Court said :

"34. The only other contention which requires

consideration is the one raised by Mr Raju

Ramachandran, learned Senior Counsel appearing for

the intervenors, to the effect that the expressions

"recruitment" and "appointment" have two different

concepts in the service jurisprudence and, therefore,

when Rule 26 uses the expression "recruited" it must be

a stage earlier to the issuance of appointment letter and

logically should mean when the selection process

started and that appears to be the intendment of the

rule-makers in Rule 26. We are, however, not

persuaded to accept this contention since under the

scheme of Rules a person can be said to be recruited

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

selection is made and appropriate orders passed

2

thereon no person can be said to have been recruited to

the service. In this view of the matter the only

appropriate and logical construction that can be made of

Rule 26 is the date of the order under which the persons

are appointed to the post of Assistant Engineer, is the

crucial date for determination of seniority under the said

Rule........."

24. While dealing with the dispute relating to inter se seniority

of Munsifs--one set of Munsif recruited on the basis of 15th

examination held by the Public Service Commission under the Bihar

Judicial Service (Recruitment) Rules, 1955 and another set of

Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad

hoc Recruitment Rules, 1974, in Surendra Narain Singh8, this Court

held that candidates recruited against earlier vacancies shall rank

senior to those recruited against the later vacancies.

25. In Ajit Kumar Rath2, this Court followed Jagdish Ch.

Patnaik1 and did not accept the contention that those who were

appointed against the vacancies of the earlier years although,

appointed later in point of time, must rank senior to the appointees of

the vacancies of the subsequent years though appointed in prior point

of time.

2

26. This Court emphasized in the case of Uttaranchal Forest

Rangers' Association3 that no retrospective promotion can be

granted nor any seniority can be given on retrospective basis from a

date when an employee has not even born in the cadre. In this

regard, the Court relied upon earlier decisions of this Court in State

of Bihar & Ors. v. Akhouri Sachindra Nath & Ors.11 and Jagdish Ch.

Patnaik1.

27. In the case of Dinesh Kumar Sharma4, this Court was

concerned with U.P. Agriculture Group `B' Service Rules, 1995 and

the 1991 Rules. With reference to rule 8 of the 1991 Rules, this

Court held that seniority cannot be reckoned from the date of

occurrence of the vacancy and should be reckoned only from the

date of substantive appointment to the vacant post under the Rules

and not retrospectively from the date of occurrence of vacancy.

28. The dispute in Balwant Singh Narwal9 related to seniority

of the Principals, some of whom were appointed between 1995 and

2000 and others on May 26, 2000. The Principals who were

appointed on May 26, 2000 were given seniority with retrospective

effect from June 2, 1994. This Court while relying upon a decision in

Surendra Narain Singh8 held as under :

11 (1991 (suppl.) 1 SCC 334

2

"9. There is no dispute about these general principles.

But the question here is in regard to seniority of

Respondents 4 to 16 selected on 1-10-1993 against

certain vacancies of 1992-1993 who were not appointed

due to litigation, and those who were selected against

subsequent vacancies. All others from the same merit

list declared on 1-10-1993 were appointed on 2-6-1994.

Considering a similar situation, this Court, in Surendra

Narain Singh v. State of Bihar held that candidates who

were selected against earlier vacancies but who could

not be appointed along with others of the same batch

due to certain technical difficulties, when appointed

subsequently, will have to be placed above those who

were appointed against subsequent vacancies."

29. The Constitution Bench of this Court in Direct Recruit

Class II Engineering Officers' Association v. State of Maharashtra &

Ors.12 stated the legal position with regard to inter se seniority of

direct recruits and promotees and while doing so, inter alia, it was

stated that once an incumbent is appointed to a post according to

rules, his seniority has to be counted from the date of his appointment

and not according to the date of his confirmation.

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

12 (1990) 2 SCC 715

2

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 statutory 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

2

affect the employees who have been appointed validly in the mean

time.

31. In light of the legal position summed up above and rule 8

of the 1991 Rules, it is plain that 1991 appointees who were selected

and appointed in accordance with the service rules cannot be made

junior to 1994 appointees even if it is assumed that the selection and

appointment of 1994 appointees was for earlier vacancies. The 1991

appointees having been appointed substantively much prior in point

of time, they are entitled to rank senior to 1994 appointees. As

already noticed above, rule 5 of the 1991 Rules has no application for

determination of inter se seniority of the Deputy Jailors appointed by

direct recruitment in 1991 and 1994. The consideration of the matter

by the High Court is apparently flawed and cannot be sustained. In

the present fact situation, it must be held that 1994 appointees cannot

legitimately claim their seniority over 1991 appointees.

32. In view of the above, it is not necessary to deal with the

objection raised by the appellants about maintainability of writ petition

filed by contesting private respondent directly before the High Court

bypassing the remedy before the State Service Tribunal.

2

33. For the foregoing reasons, these appeals are allowed; the

judgment and order dated December 2, 2002 passed by the

Allahabad High Court is set aside. The seniority of the two groups of

direct recruits to the posts of Deputy Jailor, one appointed through

the selection made by the Uttar Pradesh Subordinate Services

Selection Commission in 1991 and the other by Uttar Pradesh Public

Service Commission in 1994 shall be now determined as indicated

above, if not determined in the manner stated above, so far. The

parties shall bear their own costs.

........................ J.

(R.M. Lodha)

NEW DELHI,

FEBRUARY 10, 2011.

2

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9906 OF 2003

PAWAN PRATAP SINGH & ORS. ... APPELLANTS

VERSUS

REEVAN SINGH & ORS. ... RESPONDENTS

WITH

CIVIL APPEAL NO.9907 OF 2003

AND

CIVIL APPEAL NO.9908 OF 2003

J U D G M E N T

Aftab Alam, J.

I have had the benefit of going through the judgment prepared by my

brother Lodha J. The judgment deals with all the relevant facts and the

statutory provisions and by application of rule 8 of the Uttar Pradesh

Government Servants Seniority Rules, 1991 (the 1991 Rules) concludes that

3

the appellants who were appointed as Deputy Jailers in 1993 (on the basis of

the selection process that commenced on October 27, 1990) would rank

senior to the first respondent who was appointed in 1994, even though in his

case the selection process had commenced much earlier on December 26,

1987. I too reach the same conclusion but by a different way and for slightly

different reasons.

The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service

Rules, 1980 (the 1980 Rules) under which the appellants and the first

respondent were appointed as Deputy Jailers had, in rule 22, the provision

for determination of seniority in any category of posts in the service. But

rule 22 of the 1980 Rules was superseded by the 1991 Rules framed under

Article 309 of the Constitution and coming into force with effect from

March 20, 1991. The 1991 Rules were made applicable to all government

servants whose recruitments were governed by rules framed under Article

309 of the Constitution and were given overriding effect over all other

service rules. Both the appellants and respondent no. 1 were appointed after

the 1991 Rules came into force. Hence, both sides agreed that the question

of their inter se seniority can be determined only under the provisions of the

1991 Rules.

The High Court on application of the (second) proviso to rule 5 of the

1991 Rules held that respondent no.1 would rank senior to the appellants,

3

observing that the candidates who were selected in the selection process that

commenced in 1987 should rank senior to those selected in the selection

process commencing much later in 1990. By a process of semantic

reasoning, the High Court tried to make a distinction between `selection' and

`appointment' and held that under the proviso to rule 5 what was

determinative was not appointment but selection. Proceeding on that basis

the High Court held that though the appellants were appointed earlier (in

1991) than respondent no.1 who was appointed later (in 1994), nevertheless

they would rank junior to him because they were appointed "on the result of

a subsequent selection".

I am completely unable to see how the facts of this case can be

squeezed to fit into the proviso to rule 5 of the 1991 Rules. An indication of

the kind of cases to which the proviso would apply is given in the

explanation to it. Further, in service law it is not unknown (especially in

cases where recruitments are made regularly and the selection process is not

inordinately prolonged) that even while a select list is alive and it is yet to be

completely exhausted another select list on the basis of the next selection

comes into being and appointments are made from that list. In such a

situation certain vacancies relatable to the previous selection may still be

filled up from the waiting list/unexhausted previous list and in those cases

even though the appointment might take place later, by virtue of the proviso

3

in question, the candidate from the previous list would rank senior to the

candidate appointed from the third list. To my mind, the proviso relied upon

by the High Court has no application to the facts of this case where the two

appointments, based on selections made by two different agencies, are

separated by a gap of two and a half years.

In my brother's judgment, rule 5 is discarded in preference to rule 8 of

the 1991 Rules because the post of Deputy Jailer is open to two modes of

recruitment, one direct and the other by promotion from amongst the

permanent Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed out

that rule 5 of the 1991 Rules begins by expressly stating, "Where according

to the service rules appointments are to be made only by the direct

recruitment...." On the other hand rule 8 begins by saying, "Where

according to the service rules appointments are made both by promotion and

by direct recruitment...." And under rule 8, seniority is to be determined on

the basis of the date of the order of the substantive appointment. Applying

the date of substantive appointment as the basis to determine seniority the

appellants would indeed rank senior to respondent no.1.

With full respect, however, I am unable to persuade myself in regard

to the application of rule 8 of the 1991 Rules to the facts of the case. The

facts of the case are extraordinary and they seem to me, to fall completely

outside the provisions of the 1991 Rules. An attempt to fit those facts into

3

any of the provisions of the 1991 Rules would, to my mind, amount to doing

violence to the rules. The 1991 Rules were not made exclusively for the Jail

Executive Subordinate Service (to which the post of Deputy Jailer belongs)

but those rules apply to all government servants for whose recruitments rules

are framed under the proviso to Article 309 of the Constitution. In making

rules of general application it is not possible to take into account a situation

that is way out of the normal.

In the main judgment, the facts of the case are taken note of in detail

but it would be useful to briefly recapitulate them here. Before November

25, 1989, the statutory agency to make the selection for appointment to the

post of Deputy Jailer was the Uttar Pradesh Public Service Commission

(hereinafter "UPPSC"). On December 26, 1987 the UPPSC issued an

advertisement for filling up a large number of vacancies in different posts,

including 144 vacancies in the post of Deputy Jailers. It held the main

examination of the candidates applying in response to the advertisement in

1991 and finally declared the result on July 27, 1993. On the basis of the list

received from the UPPSC, the State Government issued appointment letters

to the selected candidates (one of them being respondent no. 1) on April, 26

1994. In short, the selection process started by the UPPSC was completed

and materialized in appointments of the selected candidates in seven years.

In the meanwhile, it seems, the State Legislature, having regard to the long

3

delays in the completion of selection by the UPPSC, decided to lighten its

burden by taking away from it the recruitments on all group `C' posts in the

State. The State Legislature, accordingly, passed the Uttar Pradesh

Subordinate Services Selection (Commission), Act, 1988 to establish a

Subordinate Services Selection Commission for direct recruitment to all

group `C' posts in the State. The Act came into force with effect from

February 15, 1988. After coming into force of this Act, a notification had to

be issued by the Governor on November 25, 1989, clarifying that the

vacancies for which requisition had earlier been made to the UPPSC would

be filled up on the recommendation of the UPPSC alone and that is how the

UPPSC continued to have seisin over the vacancies advertised by it on

December 26, 1987. The newly formed Selection Commission issued an

advertisement on October 27, 1990, for filling up 60 posts of Deputy Jailer.

It completed the selection process and sent the select list to the State

Government in 1991 and on that basis the appellants were appointed vide

appointment letter dated November 23, 1991 issued by the State

Government. At this stage, it is important to note that in terms of the

advertisement issued by the Selection Commission on October 27, 1990,

there was nothing to prevent those (including respondent no.1) who might

have applied in response to the earlier advertisement by the UPPSC to also

apply for the 60 vacancies under the later advertisement by the Selection

3

Commission. When this aspect of the matter was pointed out, it was stated

on behalf of the respondents that by the time the later advertisement by the

Selection Commission was issued on October 27, 1990 some of the

applicants before the UPPSC had become overage and were no longer

eligible to apply. There are no details available as to how many of the 144

candidates appointed from the select list of the UPPSC had become overage

by the time the advertisement of the Selection Commission came on October

27, 1990; even in the case of respondent no. 1 it is not stated clearly and

definitely that he was unable to apply in response to the advertisement of

October 27, 1990, issued by the Selection Commission because by that time

he had become over age. Be that as it may, this aspect of the matter is only

incidental and it is recalled simply to point out that it is not open to the

respondents to contend that the position in which they are placed is the result

of circumstances over which they had no control and to make an appeal in

the name of equity.

The purpose in recapitulating the facts of the case is to show that the

situation arising from the two sets of appointments and the resultant dispute

of seniority is highly anomalous. It should be accepted as such instead of

trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules

were not designed to resolve a dispute of seniority arising from such facts. If

3

I put on the cap of the rule maker I cannot imagine myself conceiving of a

fact situation of this kind and making a provision to meet the contingency.

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.

As a matter of fact this principle is fully dealt with in the main

judgment in which reference is made to the decisions of this Court in Ram

Janam Singh v. State of UP, (1994) 2 SCC 622; Uttaranchal Forest

Rangers' Association (Direct Recruit) & Ors. v. State of UP & Ors., (2006)

10 SCC 346; State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors., 1991

Supp (1) SCC 334 and the principle is summarized in sub-paragraphs (2) &

(4) of paragraph 30 of the judgment.

To the decisions referred to on this point in the main judgment I may

add just one more in Suraj Parkash Gupta v. State of J & K, (2000) 7 SCC

561. The decision relates to a dispute of seniority between direct recruits and

promotees but in that case the Court considered the question of ante-dating

the date of recruitment on the ground that the vacancy against which the

appointment was made had arisen long ago. In paragraph 18 of the decision

3

(at page 578 of the SCC) the Court framed one of the points arising for

consideration in the case as follows:

"(4) Whether the direct recruits could claim a retrospective date

of recruitment from the date on which the post in direct

recruitment was available, even though the direct recruit was

not appointed by that date and was appointed long thereafter? "

This Court answered the question in the following terms:

"Point 4:

Direct recruits cannot claim appointment from date of vacancy

in quota before their selection

We have next to refer to one other contention raised by the

respondent-direct recruits. They claimed that the direct

recruitment appointment can be ante-dated from the date of

occurrence of a vacancy in the direct recruitment quota, even if

on that date the said person was not directly recruited. It was

submitted that if the promotees occupied the quota belonging to

direct recruits they had to be pushed down, whenever direct

recruitment was made. Once they were so pushed down, even if

the direct recruit came later, he should be put in the direct

recruit slot from the date on which such a slot was available

under the direct recruitment quota.

This contention, in our view, cannot be accepted. The reason as

to why this argument is wrong is that in service jurisprudence, a

direct recruit can claim seniority only from the date of his

regular appointment. He cannot claim seniority from a date

when he was not borne in the service. This principle is well

settled. In N.K.Chauhan v. State of Gujarat, Krishna Iyer, J.

stated:

Later direct recruit cannot claim deemed dates of appointment

for seniority with effect from the time when direct recruitment

vacancy arose. Seniority will depend upon length of service.

3

Again, in A. Janardhana v. Union of India, it was held that a

later direct recruit cannot claim seniority from a date before his

birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secretary to the

Government that slots cannot be kept reserved for the direct

recruits for retrospective appointments."

In conclusion I would say that in the facts of this case the issue of

seniority between the appellants and respondent no. 1 must be decided on

the basis of the aforesaid principle and there is no need to refer to rule 8 of

the 1991 Rules. By this way I also hold that respondent no.1 cannot claim

seniority over the appellants and the appellants would rank senior to

respondent no.1.

In the result, the appeals are allowed. The judgment of the High Court

is set aside and the writ petition filed by respondent no. 1 in the High Court

is directed to be dismissed.

There shall be no order as to costs.

.............................J.

(Aftab Alam)

New Delhi;

February 10, 2011.

3

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9906 OF 2003

PAWAN PRATAP SINGH & ORS. ... APPELLANTS

VERSUS

REEVAN SINGH & ORS. ... RESPONDENTS

WITH

CIVIL APPEAL NO.9907 OF 2003

AND

CIVIL APPEAL NO.9908 OF 2003

O R D E R

In view of the two separate judgments (which are concurrent in

nature) pronounced by us in these appeals today, the appeals are allowed.

There shall be no order as to costs.

...........................J.

(Aftab Alam)

...........................J.

(R.M. Lodha)

New Delhi;

February 10, 2011

4