MANOHAR LAL JAT & ORS. ETC. versus THE STATE OF RAJASTHAN & ORS. ETC. on 26 November 2020

[2020] 11 S.C.R. 948

MANOHAR LAL JAT & ORS. ETC.

v.

THE STATE OF RAJASTHAN & ORS. ETC.

(Civil Appeal No(s). 3832-3833 of 2020)

NOVEMBER 26, 2020

[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]

Rajasthan Commercial Taxes Subordinate Services (GeneralBranch) Rules, 1975: r.27 – Seniority – Creation of post of TaxAssistant – Proposal to fill 80% by direct recruitment and 20% fromamongst direct promotees – Advertisement issued on 25.01.2011for recruitment of direct recruits – On 24.05.2011, advertisementissued for filling up of 20% quota for direct promotees – Result ofwritten examination held for direct promotees announced on14.06.2011 and promotion letters issued on 23.06.2011 –Provisional results for the test held for direct recruits declared on16.05.2011 – Appointment orders of the direct recruits issued on04.07.2011 after the police verification and medical test – In theseniority list published on 04.06.2013, those appointed as directpromotees in the 20% quota were shown as senior to the directrecruits – Direct recruits challenged the seniority list – Held:Advertisements (for filling up the entire cadre, in both the quotas orstreams of recruitment) were issued one after the other – This wasthe first selection and recruitment to a newly created cadre – Delayoccurred on account of administrative exigencies (and also thecompletion of procedure, such as verification of antecedents), thus,the seniority of the promotees given on the basis of their dates ofappointment, was justified by r.27 – Service Law – Inter se seniority.

Dismissing the appeals, the Court

HELD: 1. A reading of the entire rule (Rule 27 [1] and thetwo provisos) showed that (a) before the amendment of 2002,the seniority of personnel appointed to the “lowest categories ofposts” in any department was to be determined as from the dateof appointment; however, for promotees, it was to be from thedate of selection; (b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointmentto the post or service; (c) however, in the case of pre-stateintegration of state (of Rajasthan) or pre-integration of services,seniority could be “modified or altered by the Appointing Authorityon an ad hoc basis”- this clearly was meant to be a “sunset” clause,i.e. operative for a limited period; (d) the second proviso,- whichis the one pressed into service by the DRs, states that seniorityof those selected earlier will be determined over those selectedlatter. [Para 29][961-G-H; 962-A-C]

2. The principal mandate of the rule is that seniority isdetermined on the basis of date of appointment (“shall be fixedfrom the date of their appointment”). Proviso (2) lists out two rules.The first is that those selected and appointed through a priorselection would rank senior to those selected and appointedthrough a later selection process. The High Court, in this case,was of the opinion that this rule (i.e., proviso) applied to selectionsfrom the same source, i.e., where two sets of direct recruits wereappointed, those selected through a previous recruitmentprocess, would rank senior to those recruited through a laterrecruitment process. This interpretation is, in this court’s opinion,salutary. There may be various reasons why the ultimateappointment of one batch of recruits may be delayed: challengesto some part of the recruitment process (such as shortlisting,calling of candidates for interviews, etc.), during which period, asubsequent recruitment may be undertaken. To forestall anyapprehensions as to which of the appointees would be senior,and if those from the earlier process are appointed later, theproviso clarifies that candidates from the earlier process wouldrank senior, despite the main rule speaking of a date ofappointment based seniority. The same logic would apply todepartmental promotees, as well, if two batches of promoteesare appointed through selection. The second limb of the secondproviso clarifies that when merit-based, or seniority-basedpromotions are resorted to, the applicable norm would beseniority in the feeder cadre, to forestall any debate about therule of merit (in the selection) being the guiding principle. [Para30][962-C-G]

A3. Keeping in mind that the advertisements (for filling theentire cadre, in both the quotas or streams of recruitment) wereissued one after the other, and more importantly, that this wasthe first selection and recruitment to a newly created cadre,thedelay which occurred on account of administrative exigencies (andalso the completion of the procedure, such as verification ofBantecedents) the seniority of the promotees given on the basisof their dates of appointment, is justified by Rule 27 in this case.The impugned judgment is not erroneous; it does not call forinterference. [Para 32][964-G-H; 965-A-B]

Prem Kumar Verma v. Union of India (1998) 5 SCCC457 : [1998] 2 SCR 763 – relied on.

Gajendra Singh & Ors. v. State of Rajasthan & Ors.CWP No. 4630 of 2017 ; S. Sundaram Pillai and othersv. V. R. Pattabiraman and Other (1985) 1 SCC 591 :[1985] 2 SCR 643 ; J.K. Industries Ltd. and & Ors v.DChief inspector of Factories and Boilers & Ors (1996)6 SCC 665 : [1996] 6 Suppl. SCR 798 ; Casio IndiaPvt. Ltd. v. State of Haryana (2016) 6 SCC 209 ;Rohitash Kumar v. Om Prakash Sharma and Ors. (2013)11 SCC 451: [2012] 13 SCR 47 – referred to.

Case Law ReferenceE

FCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3832-3833 of 2020.

From the Judgment and Order dated 23.04.2018 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal WritNo.1053 of 2017 and D.B. Special Appeal Writ No. 1250 of 2017]GWith Civil Appeal No. 3834 of 2020.

Ms. Aishwarya Bhati, S.K. Keshote, Dr. Manish Singhvi, R.Venktramani, Sr. Advs., Ms. Oorjasvi Goswami, Ms. Chitrangda R.,Nithin Chaudhary P., Ms. Kirti K., Celeste Agarwal, Gp. Capt. Karan H

Singh Bhati, Prashant Bhushan, Devesh Kumar Agnihotri, Rishi Matoliya,Vivek Gupta, Shailja Nanda Mishra, Arpit Prakash, D.K. Devesh, MilindKumar, Irshad Ahmad, Devvrat, Abhijit Banerjee, Ms. Swati Setia, YashRaj Bundela, Praveen Vignesh, Rajeev Maheshwaranand Roy, GunjanKumar, P. Srinivasan, Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J. 1. Leave granted.

With consent of all the counsel for parties, the appeals were heardfinally and judgement was reserved on 24th January 2020. These appealschallenge the common judgement of the Rajasthan High Court[1]. TheDivision Bench of the High Court by the impugned judgement set asidean order made by the learned single judge of that court and held that thepresent Appellants (hereafter referred to as “direct recruits” or “DRs”)were not entitled to claim seniority over and above the respondents,hereafter called “departmental promotes” or “DPs”). The DRs hadapproached the High Court in the first instance, claiming that the senioritylist, showing the DPs in earlier positions, was untenable; the single judgeallowed that petition. The Division Bench has, however, allowed theappellants to question the eligibility of DPs to be recruited.

2. The relevant facts are that on 01.09.2009, the FinanceDepartment of the Government of Rajasthan granted approval for creationof 531 posts of Tax Assistants. This newly created post was augmentedby further 23 posts, which were added to the cadre; the final tally ofsuch newly created posts of Tax Assistants became 554. Amendmentsto the Rajasthan Commercial Taxes Subordinate Services GeneralBranch Rules, 1975, made with effect from 01.12.2010, prescribed themanner of filling of posts of Tax Assistants. Schedule-I of the AmendmentRules defined the manner of filling of the posts in the following terms:

“100% by direct recruitment:

(a) 80% by the appointing authority in accordance withSchedule III

(b) 20% by selection from amongst ministerial staff of thecommercial taxes department that by way of departmentalexamination in accordance Schedule II”

3. On 4th October 2010, a Departmental Selection Committeewas constituted for recruitment of both categories and proceedings were 1 Sitting at its Jaipur Bench, in DB Special Appeal Writ Number 1053/2017 and DBSpecial Appeal Writ No. 1250/2017

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Ainitiated soon filling all the for 554 posts of Tax Assistants. In accordancewith the rules, it was proposed to fill the 80% quota of direct recruits tothe extent of 443 vacancies and 111 from amongst DPs. Accordingly, on25.01.2011 and advertisement was issued for recruitment of DRs. Thewritten examination, stipulated under the rules was conducted forrecruitment of DR’s; thereafter a typing test was conducted onB15.05.2011. 356 candidates participated in this typing test. On 16.05.2011,provisional results were declared for the test held for DRs. Thereafterletters were apparently written by the Commissioner, Department ofCommercial Taxes enclosing a list of successful candidates, to the policeauthorities for due verification of their character and antecedents. OnC24.05.2011, the department advertised for filling up of the 20% quota forDPs. Earlier the proposal was to hold the written examination for theDPs on 24.06.2011; however, it was held earlier on 11.06.2011 and12.06.2011. The results of these tests for the DPs were announced on14.06.2011 and the department issued promotion letters on 23.06.2011.On 24.06.2011 the appellants were issued with letters for policeDverification and medical test. By this time however the DPs had alreadybeen promoted, and had taken charge of their posts. The appointmentorders of the DRs were issued subsequently; on 04-07-2011.4. On 5th June, 2013, the Commercial Taxes Department of theState of Rajasthan published a seniority list in which those appointed asEDPs, in the 20% quota were shown as senior to the DR/the appellants.Apparently, some of the DRs – including the appellants objected to thisplacement and sought for correction of the seniority list[2]. Anotherprovisional/tentative seniority list was issued on 15-05-2014, in whichthe position was no different inasmuch as the DPs were shown above Fthe DRs. The appellants again objected; nevertheless on 18-09-2015 theDepartment substantially confirmed their previous positions in the finallist published by it.

5. The Direct Recruits (DRs) filed one set of Writ Petitions[3]contending that the seniority lists were contrary to law. Yet anotherGseniority list was issued by the Department on 30.05.2016 in which theprevious position of the DPs was left undisturbed. This became the 2 The third appellant, Ankur Kumar Bansal objected through a representation dated27.06.2013, in effect stating that the placement of DPs above the DRs was unjustifiedand contrary to the rules.H3 Manohar Lal Jat & Ors. vs. State of Rajasthan &Ors.

subject matter of challenge before another proceeding[4]. Though thetwo writ proceedings had challenged the seniority position allotted to theDRs except the few DPs and official respondents, no others wereimpleaded. The prominent grounds of attack in the writ petition, werethat the recruitments of the DRs and DPs took place simultaneously andthat the departmental candidates were mala fide issued with appointmentletters earlier, for no reason except to ensure that their dates of entryinto the cadre of tax inspectors were earlier, in order to favour theirfurther career progression.

6. A learned Single Judge of the High Court by Judgment dated25.05.2017 considered Rule 27 of the concerned Rules (hereafter calledthe “Seniority Rules”)[5].

7. The Single Judge took particular notice of Rule 27(2) whichstated that those who undergo recruitment process in an earlier selectionwill be placed at senior positions to those who undergo recruitment in aselection by a later process. The Single Judge concluded as follows:

“16. A glance of Rule 2 (1) would reveal that the advertisementdated 25th January, 2011, was issued with reference to thevacancies of the year 2010-2011. Obviously, theadvertisement dated 24th May, 2011, would be a recruitmentprocess with reference to the vacancies of the subsequent year2011-2012. The respondents are curiously silent on this aspectin their counter affidavits as well as during the arguments.

17. A conjoint reading of Rule 2(1) and 27 of the Rules of1975, would leave no room of any doubt that the personsselected and appointed as a result of a selection process,which is not subject matter to review and revision, shall ranksenior to the persons who are selected and appointed as aresult of subsequent selection. Thus, the phrase ‘subsequentselection’ under Rule 27 read with Section 2(1) leads to logicalconclusion that the petitioners are employees who wereappointed in a previous selection and the private respondents(departmental employees), are the persons who were accordedappointment in a ‘subsequent selection’. Hence, thosedepartmental candidates cannot be allowed to march over 4 Gajendra Singh & Ors. vs. State of Rajasthan &Ors. CWP Np. 4630 of 2017

5 Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975

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Aand above in the seniority to the petitioners, who are thesuccessful selected candidates of a previous selectionprocess.”

8. The DRs aggrieved by the Judgment of the learned Single Judgepreferred appeals to the Division Bench Special Appeal Writ No. 1053Bof 2017 and Special Appeal Writ No. 1250 of 2017.

9. Since all the Departmental Promotees (DPs) were notrepresented before the Single Judge, many of them preferred third partyappeals. The Division Bench by its impugned Judgment allowed theseappeals by DPs after noticing that Rule 27 which had been relied uponCby the Single Judge had been amended. The Division Bench took noteof the fact that after amendment with the amendment provisos havebeen added.

10. The Court held that the main provision of the Rule 27 wasamended on 10.10.2002 which added a second proviso and that theDproviso would operate when two selections are for one and the samecategory. The relevant observations of the Division Bench are as follows:

“In our opinion, there is conflict between the main provisionof rule 27 and second proviso. If proviso is applied takinginto consideration the earlier and subsequent selectionEfollowed by appointment then, in a given case, where aselection was started earlier to subsequent but the appointmentis given first to those selected pursuant to subsequentselection, the relevance of the date of appointment getsnullified. It is because of appointment of the candidatespursuant to the subsequent selection prior to the appointmentFof the candidates out of earlier selection. They would not getseniority despite earlier appointment and, thereby,significance to the date of appointment given in Rule 27 wouldbe violated. The proviso cannot nullify the main provisionand, in those circumstances, consideration of two provisionsGhas to be made. The proviso would operate when twoselections are for one and the same category.”

11. According to the Division Bench thus the two categories DPsand DRs were different and it was not open to the DRs especially aftera long lapse of time, to question the placement in the seniority list of theDPs. However, since the DRs/Original Writ Petitioners had argued beforeH

the Division Bench about the ineligibility of DPs (or some of them) toparticipate in the selection –(which was held in 2011) that issue waskept open.

Arguments of parties

12. Mrs. Aishwarya Bhati, learned Senior Counsel and Mr. PrashantBhushan appearing on behalf of the appellants argued that the DivisionBench ignored the fact that recruitments in this case were conductedwith two different advertisements for the same post, the appellants whowere from open category against 80% quota were selected earlier andthe other set of departmental employees were recruited later. In terms,the DR, answered the description of having been selected earlier, andhaving participated in an earlier recruitment process. On the other hand,the DPS responded to a different advertisement issued later, andunderwent a separate selection process. Plainly, having regard to theexpress terms of the rule, i.e. Rule 27, the seniority of the direct recruits(i.e. the appellants and others like them) had to be determined at postsearlier than or senior to the DPs who were selected later.

13. It was argued that the mere incidence of issuance of earlierappointment letters could not have resulted in an undue and unfairadvantage to the DPs as to deprive the DRs of earlier slots of the commonseniority lists. Elaborating on this aspect, learned counsel relied upon theobservations of the Single Judge and stated that selection or recruitmentfor the DR quota were advertised on 25.01.2011; the test was conductedon 17.04.2011 and on 16.05.2011 the select list for the DR category waspublished. However, the Commercial Taxes Department deliberatelywithheld issuing appointment letters and released another advertisementto fill up the DP 20% quota of the ministerial employees who wereworking in the same department. The departmental examination for theDP quota was conducted on two successive dates i.e. 11.06.2011 and12.06.2011. The learned counsel highlighted that this was despite thefact that the departmental test was originally scheduled later. Havingproceeded to schedule the test earlier the state proceeded with unusualspeed and published the results of the DP category candidates for the20% quota on 14.06.2011 and hastily issued appointment letters on23.06.2011. It was only thereafter that the appointment letters of DRcategory candidates (for the 80% open quota) were issued. It wassubmitted that these circumstances ipso facto established malice against A

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ADRs and advertisement on the part of the State and its officers, to grantundue and unfair advantage to the DP category of candidates.

14. Learned counsel highlighted that the representation/letter bythe General Secretary of the Departmental Employees Association hadpressurised the Commercial Tax Department to recruit DPs earlier andBrelied upon a letter dated 19.05.2011. The conduct and action of theState in speeding up the process of selection of the DP quota to the utterdisadvantage of the DR recruits, was thus established from the record.The department in fact given unprecedented priority, to select candidatesfor the 20% departmental quota.

C15. Learned counsel also argued that the explanation given by theState for the delay that occurred in issuing appointment letters to the DRquota candidates (which was that sometime was taken in policeverification and medical check up) has to be considered in the light ofthese established facts. The learned counsel emphasised that it wasonly after the appointment letters were issued to the DP candidates inDthe 20% category on 24.06.2011 that a mere 10 days later, i.e. 14.07.2011,appointment letters were issued to the DR candidates.

16. It was lastly argued that the Division Bench while ignoring thefacts of the case, interpreted the rules (Rules 27 of the RajasthanCommercial Taxes Subordinate Service (General Branch) Rules, 1975E(in short, the Rules of 1975) incorrectly. The original Rule 27 which wasamended by notification dated 10.10.2002, which reckoned the seniorityfrom the date of appointment. However, the proviso (2) of the Rules 27was retained, which clearly stipulates “that the persons selected andappointed as a result of selection, which is not subjected to reviewFand revision, shall rank senior to the persons who are selected andappointed as a result of subsequent selection. Seniority inter-se ofpersons selected on the basis of seniority-cum-merit and on the basisof merit in the same selection shall be same as in the next belowgrade”.G17. It is argued that pertinently the intent of the rule, in retainingthe proviso (2) of the said rule, was to avoid ambiguity in reckoningseniority, in the cases wherein the selection for the same post i.e. “TaxAssistants’ is done through two different sources, wherein the date ofadvertisements and selection processes are different. The proviso carvesout an exception to the main provision, and the function of the proviso isHto limit the main part of the provision and carve out something which but for the proviso would have been within the operative part. This Court invarious judgments such as S. Sundaram Pillai and others Vs. V. R.Pattabiraman and Others[6]; J.K. Industries Ltd. and & Ors Chiefinspector of Factories and Boilers & Ors[7], held “proviso is anexception to the main part of the section; but it is recognized that inexceptional cases a proviso may be substantive provision itself.”

18. It is urged that the amended rule 27, only speaks about theseniority on the basis of date of appointment; however, the proviso (2)clarifies the rule for reckoning seniority when there are twoadvertisements for the same post, filled through different categories(sources) of candidates. Therefore, the main rule will only apply whenthe recruitment is through the same advertisement. It cannot be appliedin a case where another advertisement is issued for the same post afterthe release of the results of the first advertisement and appointmentorder is given in the later case. This process of arbitrary recruitment willalways deprive of the candidates in their order of seniority in their wholeservice tenure which is against the principles of Article 14.

19. Dr. Manish Singhvi, the learned Additional Advocate General,appearing on behalf of the State of Rajasthan and Mr. R. Venkatramani,learned Senior Counsel appearing on behalf of the contesting respondents,i.e. the Departmental Promotee (DP) candidates, made their submissions.It was argued on behalf of the State respondents that the permission forcreation of 531 posts was given on 01.09.2009 and later 23 posts wereadded. The recruitments in question resorted to in 2011, through the twoadvertisements issued (one for the 80% quota of DRs and other to fill up20% quota of DPs) was the first recruitment drive to fill up these newlycreated posts which had hitherto not existed. It was urged on behalf ofthe State that these circumstances of the case are to be kept in mindfrom an important perspective i.e. the first attempt of the State to fill upa large number of posts after they were encadred and were lying unfilledfor nearly two years. Learned counsel submitted that no doubtadvertisements to fill up the DR vacancies were issued prior in point oftime i.e. in January 201, however in response to this advertisement forthe 80% vacancies (i.e. 443 vacancies) no less than 15,352 applicationswere received; these has to be screened to determine eligibility of thecandidates; thereafter the written examination was conducted on17.04.2011. A typing test was also conducted on 15.05.2011 for 356

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Acandidates. A provisional result was declared on 16.05.2011. The learnedAdditional Advocate General emphasized that the police verification andmedical examination processes took a little while for such a large numberof candidates and was eventually completed on 01.07.2011.

20. It was urged that two months period for completing this processBcannot be considered unreasonable for any stretch of imagination – sinceRajasthan is the largest State geographically and has about 35 districts.The advertisement for departmental candidates was in the meanwhileissued on 24.05.2011. For filling 111 vacancies, 232 applications werereceived, written test was held on two dates i.e. 11th and 12th June,2011. The DPs were not required to undergo any typing test nor requireCpolice verification and medical examination since they were workingwith the Government for a considerable period of time. The process forfinal appointment thus was relatively easy. In these circumstances theirresults were compiled and published on 14.06.2011 but having regard tothe simplified and shortened nature of the selection process they wereDappointed on 24.06.2011.

21. The learned Additional Advocate General and Senior Counselfor the contesting respondents submitted that the Division Bench correctlyconcluded that the underlying idea behind Rule 27 and the principle ofseniority indicated by it which is that those selected earlier would rankEearlier to those selected later, would apply in the case of recruits in thesame category. Thus, for instance, if within the DR quota there are twosets of selections, the Rule enunciated in Rule 27, squarely applied,however that principle would be inapplicable where the recruits areappointed from different categories such as promotees and direct recruits.In such cases the main part of the Rule i.e. seniority based upon theFentry into the cadre would squarely applied.

22. Learned senior counsel highlighted that the consistent view ofthis Court in several decisions has been to confine the proviso within thefield of its operation and not allow it to supplant the main or enactedportion contained in the provision of which the proviso relates to. It isGthus urged that the proviso cannot be interpreted as nullifying theenactment or taking away something conferred by the main section orprovision. Learned counsel relied upon certain decisions in this regard[8].The learned AAG emphasized that the facts on record show that the8 Casio India Pvt. Ltd. v. State of Haryana (2016) 6 SCC 209 & Rohitash Kumar v. OmHPrakash Sharma and Ors. (2013) 11 SCC 451.

entire cadre was created for the first time by the single notification dated01.12.2010. The recruitment to the two categories occurred as a firsttime measure. That advertisements were issued on different dates –one for direct recruits (DRs) and the other for direct promotees (DPs)did not make them separate recruitment processes. They werecontemporaneous in that the State intended the selected candidates toman the same post. Thus, it could not be argued that appointments madein the 80% quota for DR candidates was for a previous year (havingregard to the definition of “Year” under the recruitment rules[9].

23. It was highlighted in this regard that the decision to conductthe recruitment and selection process was a composite one – thoughadvertisements were issued on separate dates. If one kept this in mind,it was clear that the entire recruitment process was a composite one.Given that the 80% quota earmarked for DRs was available to candidateswith different eligibility criteria, of necessity, a separate advertisementwas issued. Similarly, having regard to the fact that the 20% departmentalpromotion quota could be filled only by those working within theCommercial Tax Department (and which could not be filled by DRs), adifferent kind of advertisement with relevant eligibility conditions wasissued. This did not mean that separate selection processes were held;since the department had vacancies in a new post for the first time,recruitment had to be considered common.

Relevant rules:

24. Rule 27 of the Rajasthan Commercial Taxes SubordinateServices (General Branch) Rules, 1975 was taken note of by the learnedSingle Judge. The relevant extract of that Rule is reproduced below:

“27. Seniority “Seniority of persons appointed to the lowestpost of the Service or lowest categories of posts in each ofthe Group/Sections of the Service, as the case may be, shallbe determined from the date but in respect of personsappointed by promotion to other higher posts in the Service 9 Rule 2 reads as follows:“Definition – 2.In these rules, unless the context otherwise requires:(a)…………..(b)………………xxxxxxxxxxxxxxxxxx(l) Year “means financial year”.

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Aor other higher categories of posts in each of the Groups/Sections in the Service, as the case may be, shall be determinedfrom the date of their regular selection to such posts.

Provided

(1) That the seniority inter-se of the persons appointed toBthe Service before the commencement of the rules, and/or in process of integration of the Services of the pre-reorganisation of States of Rajasthan or the Services ofthe new State of Rajasthan established by the State Re-organisation Act, 1956, shall be determined, modifiedCor altered by the Appointing Authority on an ad hoc basis;

(2) That the persons selected and appointed as a result of aselection, which is not subject to review and revision,shall rank senior to the persons who are selected andappointed as a result of subsequent selection. SeniorityDinter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selectionshall be the same as in the next below grade;”

25. With effect from 10.10.2002, the main provision of Rule 27was amended even while maintaining the two provisos below it. ThisEwas referred to by the Division Bench in its impugned judgment. Theamendment to the Rule is extracted below:

“AMENDMENT: In the column of the Schedule attachedherewith, following words shall be substituted in place of everyService Rule Col. No.4 with regard to substantial provisionsF(except their provisions) which means:- ‘Seniority in respect of persons appointed on the postsincluded in the cadre of service shall be as per the provisionsof these rules and shall be fixed from the date of theirappointment. Those appointed on ad hoc or urgent temporarybasis, they shall not be considered after their regularGselection.”

26. The following provisos to the above main provision (i.e. Rule27 [1]) were left intact:

“Provided that

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(1) That the seniority inter-se of the persons appointed tothe Service before the commencement of the rules, and/or in process of integration of the Services of the pre-reorganisation of States of Rajasthan or the Services ofthe new State of Rajasthan established by the State Re-Borganisation Act, 1956, shall be determined, modifiedor altered by the Appointing Authority on an ad hoc basis;

(2) That the persons selected and appointed as a result of aselection, which is not subject to review and revision,shall rank senior to the persons who are selected andCappointed as a result of subsequent selection. Seniorityinter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selectionshall be the same as in the next below grade;”

27. Thus, the main provision was amended as to clearly providethat seniority in the cadre would be fixed from the dates of appointmentof the employees, or officers, to the cadre.

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28. The question to be decided here is having regard to the factthat the DPs were concededly appointed prior to the DRs, where thelatter, as is argued by them appointed on the basis of merit “in the sameselection”[10] The DRs argument is that their appointment, later than theDPs is the result of manipulation by the department (or, rather someofficers in the department) who wished to favor the DPs; and that sincetheir selections began before that of the DPs, the second proviso isattracted, for determination of inter se seniority. They also argue thatthe selection- in terms of the rules, “subsequent selection” necessarilyrefers to a chronologically later event; in the present case, the recruitmentof the DRs began with the advertisement in January, 2011 (and thus, inthe earlier financial year, having regard to Rule 2 (l)) whereas the selectionprocess for DPs began in May, 2011.

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29. On a plain reading of the entire rule (Rule 27 [1] and the twoprovisos) what is evident is that (a) before the amendment of 2002,seniority of personnel appointed to the “lowest categories of posts” inany department was to be determined as from the date of appointment;

Ahowever, for promotees, it was to be from the date of selection; (b)after the amendment of 2002, seniority has to be fixed (by reason ofRule 27 (1)) as on the date of appointment to the post or service; (c)however, in the case of pre-state integration of state (of Rajasthan) orpre-integration of services, seniority could be “modified or altered bythe Appointing Authority on an ad hoc basis”- this clearly was meantBto be a “sunset” clause, i.e. operative for a limited period; (d) the secondproviso,- which is the one pressed into service by the DRs, states thatseniority of those selected earlier will be determined over those selectedlatter.30. Plainly, the principal mandate of the rule is that seniority isCdetermined on the basis of date of appointment (“shall be fixed fromthe date of their appointment”). Proviso (2) lists out two rules. Thefirst is that those selected and appointed through a prior selection wouldrank senior to those selected and appointed through a later selectionprocess. The High Court, in this case, was of the opinion that this ruleD(i.e. proviso) applied to selections from the same source, i.e. wheretwo sets of direct recruits were appointed, those selected through aprevious recruitment process, would rank senior to those recruited througha later recruitment process. This interpretation is, in this court’s opinion,salutary. There may be various reasons why the ultimate appointment ofone batch of recruits may be delayed: challenges to some part of theErecruitment process (such as shortlisting, calling of candidates forinterviews etc.), during which period, a subsequent recruitment may beundertaken. To forestall any apprehensions as to which of the appointeeswould be senior, and if those from the earlier process are appointedlater, the proviso clarifies that candidates from the earlier process wouldFrank senior, despite the main rule speaking of a date of appointmentbased seniority. The same logic would apply to departmental promotees,as well, if two batches of promotees are appointed, through selection.The second limb of the second proviso clarifies that when merit based,or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule ofGmerit (in the selection) being the guiding principle.31. In Prem Kumar Verma v. Union of India[11 ]this court had toconsider Rule 303 of the Railway Establishment Manual, which was H11 (1998) 5 SCC 457

phrased like Rule 27 in the present case. The extract of the relevantdiscussion is as follows:

“4. In view of the rival submissions at the Bar the first questionthat would arise for consideration is which Rule would governthe inter se seniority. It is undisputed that vacancies aroseprior to July 1989 and advertisement for the said post hadbeen issued earlier to July 1989 and finally the RailwayRecruitment Board concluded its selection process andselected 29 candidates on 11-7-1989. Therefore, the relevantRules, as existed then, would govern the inter se seniority.The next question that arises for consideration is which is therelevant Rule that was in force in July 1989. From the materialsproduced before us it appears that para 303 of the Manual,as it stood in July 1989 is to the following effect:

“303. The seniority of candidates recruited through theRailway Service Commission or by any other recruitingauthority should be determined as under:

(a) Candidates who are sent for initial training to trainingschools will rank in seniority in the relevant grade in theorder of merit obtained at the examination held at the endof the training period before being posted against workingposts.

(b) Candidates who do not have to undergo any training,the seniority should be determined on the basis of the meritorder assigned by the Railway Service Commission or otherrecruiting authority.”

Later on sometime in the year 1990 Rule 303(a) was amendedby inserting the following expression:

“Those who joined the subsequent course for any reasonswhatsoever and those who passed the examination in thesubsequent chance will rank junior to those who hadpassed the examination in earlier courses.”

The aforesaid Rule stood further amended in 1993 which readsthus:

“In case however persons belonging to the same RRB panelare sent for initial training in batches due to administrative AB

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Areasons and not because of reasons attributable to thecandidates, the inter se seniority will be regulatedbatchwise provided persons higher up in the panel of RRBnot sent for training in the appropriate batch (as perseniority) due to administrative reasons shall be clubbedalong with the candidates who took the training in theBappropriate batch for the purpose of regularising the interse seniority provided such persons pass the examinationat the end of the training in the first attempt.”

5. In view of our conclusion that the posts fell vacant prior toJuly 1989 and the process of selection was completed andCthe Recruitment Board selected the candidates on 11-7-1989the amendment that was introduced on 5-5-1990 and thefurther amendment of 1993 will have no application and it isthe unamended Rule 303(a), as it stood on 11-7-1989, thatwould govern the case of inter se seniority. The analysis ofDthe provisions of para 303 indicates that where candidates are required to undergo some training after being selectedthrough Railway Service Commission or any other recruitingauthority, their seniority is determined on the basis of theirrespective merit in the examination held at the end of thetraining period and where candidates do not have to undergo E

any training, the seniority is determined on the basis of themerit assigned by the Railway Service Commission or otherrecruiting authority. In the present case the candidates hadto undergo training and in fact they had undergone trainingin batches, as already stated. In that view of the matter theirFseniority had rightly been determined by the Railway authorityon the basis of their respective merit obtained in theexamination held at the end of the training period. TheTribunal committed error by altering the said seniority on thebasis of a rule which was not in existence on the date thevacancy arose and, on the date, when the selection wasGcompleted.”

32. Keeping in mind that the advertisements (for filling the entirecadre, in both the quotas or streams of recruitment) were issued oneafter the other, and more importantly, that this was the first selection andrecruitment to a newly created cadre,the delay which occurred onH

account of administrative exigencies (and also the completion ofAprocedure, such as verification of antecedents) the seniority of thepromotees given on the basis of their dates of appointment, is justified byRule 27 in this case. The impugned judgment, in the opinion of this court,is not erroneous; it does not call for interference.

33. In view of the above discussion, the appeals are dismissed,without order on costs.

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Devika Gujral

Appeals dismissed

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