Rajendra Pratap Singh Yadav & Ors vs State Of U.P. & Ors

and Others ...Appellants

Versus

State of U.P. and Others ...Respondents

WITH

CIVIL APPEAL NO. 4950 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. 4951-4953 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. 4954-4956 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. 4949 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.4954-4956 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.4951-4953 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.4951-4953 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