SUSHIL PANDEY & ANR versus STATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS on 16 January 2023

[2023] 3 S.C.R. 207

SUSHIL PANDEY & ANR

v.

STATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS.(Civil Appeal No. 1838 of 2018)

JANUARY 16, 2023

[AJAY RASTOGI AND ANIRUDDHA BOSE, JJ.]

Uttar Pradesh Police Radio Service Rules, 1979 – rr. 17, 22– 50% vacancies for the post of Assistant Radio Officers to be filledthrough direct recruitment and 50% by promotion from the feedercadre (Radio Inspectors)– Appointments from both the streams weremade on different dates– Combined selection list, quashed by HighCourt for being in violation of r.17 and r.22 – Fresh selection listwas prepared, challenged by appellants-candidates from the feedercadre – List sustained by High Court – Held: Manner in whichappointment orders were issued was found to be in breach of theprovisions of r.17 in the first judgment –However, neither the firstjudgment nor the impugned judgment stipulated in what mannerthe dates of birth into the cadre for individual candidates from thetwo streams were be determined – Since main reasoning of the HighCourt for deciding the matter was that selection from both streamswas made from a common recruitment process,the dates ofappointment orders of both the streamsought to be treated from aparticular date and 30[th] January 1996 being the date on which theappointment letters of the promotee candidates were issued, wouldbe such date – Thus, the seniority of the candidates including theappellants be determined treating the entry into the cadre of bothsets of candidates (promotees and direct recruits) on 30[th] January1996 and the seniority position be recast on that basis – On thequestion of intra-stream seniority, r.22 shall be followed – Impugnedjudgment modified – U.P Government Servant Seniority Rules,1991– Constitution of India – Art. 142– Service Law.

Disposing of the appeal, the Court

HELD: 1.1 The argument of the appellant that birth in thecadre first would automatically accord the seniority over andabove those who are appointed at a later date is agreed with.This principle, however, is to apply in absence of any contrary

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Conclusion

Aprovision in the applicable service rule. In the present case thisaspect has been addressed by the Division Bench in the judgmentdelivered on 12th September 2012. The opinion of the High Courtin this judgment was that since there was a common requisition,the appointments should have been made only after preparingthe combined select list and seniority ought to have beenBdetermined in accordance with Rule 22. This part of the judgmenthas remained unaltered. Admitted position is that a review petitionin relation to this judgment was filed but the review judgment didnot upset this finding of the Division Bench. In the decision underappeal, the Division Bench has relied on these two paragraphs ofCthe earlier judgment and come to its finding. Thus, so far as theappellants and other parties to this appeal are concerned, thesaid finding has attained finality and this question cannot bereopened in an appeal arising out of a subsequent proceeding onnear identical factual background. The High Court, in the earlierjudgment found that compliance of Rule 17 was not made inDpreparing the seniority list of 1999. The subsequent selectionlist was made in terms of decision of the High Court delivered on12th September 2012. The general principle of servicejurisprudence that seniority is required to be computed from thedate of actual entry into a particular cadre cannot operate in aEcase where there is an undisturbed judicial finding thatappointments were made on different dates in breach of theapplicable Rules. Moreover, selection list per se does notdetermine seniority as the said list is only to contain names ofpersons who are to be part of a particular cadre. In the 1979Rules also, selection list is to be prepared as per Rule 17 whereasFseniority is to be determined in terms of Rule 22. What theauthorities have done in finalising the 2013 selection list is thatpositioning of incumbents in this list have been made on the basisof their seniority. Thus, it has become a combined selection andseniority list.[Paras 11 and 13][220-F-H; 221-A-B]GState of Uttar Pradesh v. Ashok Kumar Srivastava &Anr.(2014) 14 SCC 720 : [2013] 11 SCR 846 – referredto.

1.2 The selection list stipulated how the vacancy positionsshall be filled but for determination of seniority, the dates ofH

appointment were to be treated as dates of birth in the cadre. Inrelation to the two streams of entry, after they entered the cadre,their seniority were to be decided on the basis of such dates ofentry. In the present proceeding, the manner in which appointmentorders were issued was found to be in breach of the provisions ofRule 17 in the first judgment. But neither the first judgment northe judgment under appeal stipulated in what manner the datesof birth into the cadre for individual candidates from the twostreams were be determined. Matter not remanded for thatpurpose, considering that the present dispute is continuing forabout three decades. But since the main reasoning of the HighCourt for deciding the matter was that selection from both streamswas made from a common recruitment process, the dates ofappointment orders of both the streams ought to be treated froma particular date and 30th January 1996, being the date on whichthe appointment letters of the promotee candidates were issued,would be such date. The seniority of the candidates including theappellants should be determined treating the entry into the cadreof both sets of candidates (i.e.promotees and direct recruits) on30th January 1996 and the seniority position should be recast onthat basis. On the question of intra-stream seniority, the provisionof Rule 22 shall be followed. In the recast list, however, theposition for the posts left vacant on death of dead orsuperannuated officers shall be treated as fresh vacancies andfilled up through fresh selection process. The judgment underappeal stands modified. [Paras 15 and 17-19][222-F-H; 223-B-C]

K. Meghachandra Singh & Ors. v. Ningam Siro & Ors.(2020) 5 SCC 689 : [2019] 16 SCR 651; B. S. Murthy& Ors. v. A. Ravinder Singh & Ors. 2022 SCC Online SC 317 – referred to.

Case Law Reference

[2013] 11 SCR 846referred toPara 10[2019] 16 SCR 651referred toPara 10CIVIL APPELLATE JURISDICTION : Civil Appeal No.1838of 2018.

From the Judgment and Order dated 22.07.2014 of the High Courtof Judicature at Allahabad in SB No.1619 of 2013.

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AR. Balasubramanian, Sr. Adv., Sridhar Potaraju, Sudhanshu S.Pandey, Gaichangpou Gangmei, Advs. for the Appellants.

Ms. Garima Prashad, AAG, Ms. Ruchira Goel, Harsh Mittal, AditJayeshbhai Shah, Piyush Sharma, Shivesh K. Srivastava, Ms. RashmiSingh, Ms. Mukti Chowdhary, Siddharth, Amit Kumar Agrawal, Advs.Bfor the Respondents.

The Judgment of the Court was delivered by ANIRUDDHA BOSE, J.

1. The subject of controversy in this appeal is legality of a selectionClist for the posts of Assistant Radio Officers in the Uttar Pradesh PoliceRadio Department. This list was made on 25[th]October 2013, though thedispute goes back to the year 1998. As per the Uttar Pradesh PoliceRadio Service Rules, 1979 (“1979 Rules”), the vacancies in the saidposts are required to be filled up 50% through direct recruitment and50% by promotion from the feeder cadre (in this case Radio Inspectors).DThe appellants before us are from the feeder cadre. There have beenseveral rounds of litigations in the past as regards formulation of theseniority position and the judgment which is under appeal before us,delivered by a Division of the High Court of judicature at Allahabad,Lucknow Bench on 22[nd]July 2014 has in substance, sustained theEseniority list of 25[th]October 2013. The appellants have taken out anapplication (I.A. No. 163147 of 2021) for deletion of proforma respondentnos. 20 and 21. Respondent no. 21 has passed away on 7[th]July 2017. Sofar as the said respondent is concerned, the appeal has abated as againsthim. It has been pleaded in this application that the Registry has informedthat there is no evidence of dasti services on the said two respondents.FIn the office report of 15[th]December 2015 (annexed as A1 to theapplication), it has however been recorded that service of show-causenotice is complete with respect to respondent no. 20. This has beenfollowed by the order of the Court of Registrar dated 6[th]August 2018(annexed as A3 to the application), in which also it has been recordedGthat the respondents have been duly served/represented. But no reportto that effect is available on records. In such circumstances, learnedcounsel for the appellants has not pressed this application before us.This application is dismissed as not pressed.

2. Requisitions were sent on 11[th]January 1992 to the UttarPradesh Public Service Commission (“the Commission”) for directH

recruitment against nineteen vacancies and forty-three vacancies fromthe Radio Inspectors on permanent basis for the post of Assistant RadioInspector. These vacancies occurred in different years earlier. TheCommission’s recommendations were made on 19[th]September 1995for the subject posts so far as direct recruits are concerned. For promoteecandidates, the recommendations were made on 26[th]December 1995.Sixteen promotee candidates were issued appointment letters on 31[st]January 1996 out of the forty-three recommended candidates as theremaining twenty-seven selected candidates had attained the age ofsuperannuation or died. The appointment of the direct recruits took placeon 3[rd]July 1996.

3. A combined selection list was prepared on 10[th]December 1999,but it was quashed by the High Court for being in violation of Rules 17and 22 of the 1979 Rules, in a judgment delivered by a Division Bench ofthe same Court on 12[th]September 2012. This was a common judgmentdelivered in three writ petitions. W.P. No. 711(SB) of 2000 was institutedby two Assistant Radio Officers from the reserved category claimingpromotion in the next higher post on the basis of their stand that theywere the most senior officers in that category. The directly recruitedcandidates also questioned inter-se seniority with the promotees in WritPetition No. 104 (SB) of 2000. In Writ Petition No. 10 (SB) of 2000,promotee candidates challenged the same seniority list on the groundthat promotee officers were appointed prior to those directly recruitedand the directly recruited candidates ought not to be placed above thepromotee officers in the combined selection list. The stand of the directrecruits was that as the requisitions for selection were sent to theCommission simultaneously, a common selection list ought to have beenprepared and thereafter seniority should have been fixed as per Rule 22.The other point on which the direct recruits founded their case was inrelation to inclusion in the seniority list the names of those promotees,who were superannuated or had passed away. It appears that in theirplaces in the selection list, other promotee officers were pushed up.Contention of the direct recruits before the High Court was those shouldhave been declared as fresh vacancies and should have been filled upthrough a fresh selection process.

4. The 1979 Rules lay down the procedure for promotion to thesubject posts (along with other posts within the said service). So far asthe present appeal is concerned, Rules 5(1), 14, 15, 17 and 22 are relevant.

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AThese Rules have been set out in the said judgment delivered on 12[th]September 2012. We quote below these rules, as recorded therein:- “Uttar Pradesh Police Radio Service Rules, 1979

5. Source of recruitment :- In service the recruitmentshall be made on the posts of different categories from thefollowing sources:- B

Assistant Radio officer: -

a) by direct recruitment through the commission; and

b) by promotion on the basis of the eligibility of the permanent radio inspectors through the commission; C

However from both the above sources the recruitmentshall be made in such a manner that 50 percent of the postretained by the direct recruitment and 50 percent post by thepersons from promotions;

(2) Additional State Radio officer:-

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By promotion on the basis of the seniority while rejectingthe unsuitability in the permanent Assistant Radio Officersthrough the commission; However if any suitable person is not available forpromotion, then the recruitment can be made from directrecruitment; E

(3) State Radio officer:-

By promotion on the basis of the seniority while rejectingthe unsuitability in the permanent Assistant Radio OfficersFthrough the Commission; However if any suitable person is not available forpromotion, then the recruitment can be made from directrecruitment;

(4) Dy. Inspector General of Police Telecom:

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By promotion on the basis of the eligibility of thepermanent State Audio Officers through the CommissionHowever if any suitable person is not available for promotion,then the recruitment can be made from direct recruitment underRule 15; H

14. Determination of vacancies :- The appointing Authorityshall determine the number of vacancies to be filled up duringthe year and the number of vacancies reserved for thecandidates of scheduled caste, scheduled tribe and othercategories and shall inform to the commission;

15. Procedure for direct recruitment :- The Commission shallinvite an application in the prescribed format, which can beobtained from the Secretary of the Commission after makingthe payment.

(2) The Commission under Rule 6 after considering theassurance of due representations of candidates belonged toScheduled Castes, Scheduled Tribes and other categories,shall invite the candidates for interview, who are fulfillingthe required eligibilities.

(3) The Commission shall prepare a list of thecandidates, in the serial of their proficiency, reflects from themarks secured by the candidate in the oral examination. Iftwo or more candidate would secure the equal marks, thencommission shall keep their names for the services on thebasis of the general suitability in the serial of eligibility. Thenumber of names in the list shall be more than the vacancies,however not more than 25 percent. The commission shallforward the list to the Appointing Authority.

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17. Combined Selection list - If the appointment hasbeen made through direct recruitment and promotion both,then one combined selection list would be prepared, whereinthe name of the candidates would be taken from the listprepared under rule 15 and Rule 16 in such a manner thatthere would be an ordained ratio of the direct recruitmentand promotional officers. The first name would be from thelist prepared under rule 16.

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22 - Seniority - The seniority of the post on any categoryof post in the service, would be the same which has beendetermined since the date of original appointment order and A

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if two or more persons have been appointed, then the samewould be determined in the serial, in which their names havebeen kept in the appointment order.

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One - The mutual seniority of the persons appointed inthe service as direct recruitment in the service, would be thesame as determined at the time of selection.

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Two - the mutual seniority of the persons appointedthrough the promotion in the service would be, which he wasbearing on the original post at the time of promotion.”

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5. On the question of determination of seniority, it was held by theDivision Bench in the judgment delivered on 12[th]September 2012:- “11. The determination of seniority is a vital aspect in theDservice career of an employee, his future promotion isdependent on this, therefore, determination of his senioritymust be in strict compliance of the Rules governing the service.This is also the mandate of Articles 14 and 16 of theConstitution of India. It has been so held by three judgesBench of the Hon’ble Apex Court in the case of GovernmentEBranch Press Vs. D.B. Belliappa reported in [(1979) 1 SCC477]. The law is very clear that seniority is an incidence ofservice and where service rules prescribe the method of itscomputation, it must be adhered to strictly.

12. In the facts of this case, the vacancies were relating toFdifferent years and vacancies were to be filled up by a commonrequisition with regard to direct recruits and the promotes,therefore, the selection made by the commission was made ina particular year for vacancies of different years. Beforeissuing appointment to the promote officers theGrecommendations regarding direct recruits were also lying withthe respondents and no explanation could be furnished bylearned counsel for the respondents as to why compliance ofSection 17 was not made and appointment letters for promoteswere issued. Therefore, the compliance of Section 17, in ourconsidered opinion, was necessary and only after preparing H

the combined select list, the appointment ought to have beenmade and seniority was to be determined in accordance withRule 22 of the Rules, that has not been done in the presentcase.”

(quoted verbatim from the paperbook)

6. As regards reflection of the names of superannuated officersand the officers who had expired in the combined selection list, the DivisionBench found:- “13. The other blunder that has been committed is that thenames of the superannuated/dead officers were removed fromthe seniority list and in their place the other promote officerswere pushed up, this exercise is absolutely unheard in theservice jurisprudence. This mistake, by itself, made theseniority list unsustainable under law. If this exercise of theRespondents is permitted to prevail, then it would result ingreat injustice to the officers who on their merit join theservices at an early age because in that situation, the officerswho were senior to them and are older in age shall standsuperannuated and in their place the officers who are juniorto them shall be pushed up making them juniors to officers,who were subsequently appointed or were appointed in thevacancies of the following years. The vacancies so fallen bythe superannuation or by the death of the officers were to befilled up by way of fresh selection process, therefore, theimpugned seniority list is unsustainable under law anddeserves to be quashed.”

7. After delivery of the aforesaid judgment, the fresh selection listwas prepared on 25[th]October 2013. This seniority list had beenunsuccessfully assailed by the appellants before the High Court. Mainargument of the writ petitioners therein was that the directives containedin the judgment of the Court delivered on 12[th ]September 2012 were notcomplied with. The argument of the promotees to be kept higher inseniority on the basis of their earlier entry into the cadre was urgedbefore the Division Bench. In the judgment under appeal, however, theDivision Bench repelled the challenge to the said seniority list, inter-aliaholding:- A

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“We have given our thoughtful consideration to theaforesaid arguments advanced and the facts on record andwe find that the impugned final seniority list dated 25th ofOctober, 2013 categorically places the promotes and the directrecruits vis-à- vis the year of vacancy serial wise beginningfrom the year 1990-1991. The placement as per the year ofvacancy and the names of such persons who were entitled tooccupy the same has not been questioned on any firm factualfoundation. What has been argued is that Rule 17 and Rule22 has not been complied with as noticed above. Havingconsidered the submissions raised we find that in the absenceof any averment indicating any factual fallacy in the year ofplacement mentioned in the seniority list, the contention ofthe counsel for the petitioner cannot be accepted.

The division bench while proceeding to issue directionshad observed that Rule 17 and 22 had not been shown to becomplied with when the earlier seniority list had beencirculated. The bench further observed that the State Counselhad not been able to explain as to why such compliance withregard to issuance of simultaneous letters of appointment hadnot been made.

In the aforesaid circumstances what we find is that nowthe rules appear to have been strictly complied with and it isin compliance of such rules that the names of the respectivepromotes and direct recruits one after the other have beenplaced.

Sri Manish Kumar tried to question the correctness of thesaid placement alleging that as against the direct recruits,the space for year of vacancy has been left as blank withoutmentioning the year of placement. The said argument cannotbe accepted, inasmuch as, the list appears to have beenprepared by placing first a promote and then the direct recruitaccording to the year of vacancy.

This factual position could not be therefore successfullyassailed by the learned counsel for the petitioner on violationof any rule. The contention therefore, in our opinion,questioning the correctness of the seniority list on the basis of non- compliance of the earlier judgment does not holdwater.

We do not find any merit in the petition. The writ petitionis accordingly dismissed.”

8. So far as the seniority list of 2013 is concerned, the maingrievance of the appellants is that the direct recruits (who are the privaterespondents in this appeal) were positioned as per the rota system in thecombined list without mentioning the year of vacancies and the promoteesin respective vacancies of earlier years were ignored in the processwhile fixing their seniority. The first appellant was positioned at serialnumber 52 whereas second appellant was positioned at serial number48 and they were shown to be in respect of the vacancies for the year1993-1994. So, essentially the appellants are aggrieved on two counts.The first is that the direct recruits have been placed in the seniority listignoring the year of vacancy. Secondly, they contend that as theirappointment and confirmation was prior to those from the stream ofdirect recruits, the appellants were born into the cadre earlier than thedirect recruits. According to the appellants, on this reasoning they shouldhave been placed above the direct recruits in the seniority list. What hasbeen argued on this point is that the selection list prepared under Rule 17of the 1979 Rules deal with apportionment of the vacant positionsbetween promotee officers and direct recruits but this list does not dealwith the question of seniority. In this regard, Rule 8 (3) (ii) of the U.PGovernment Servant Seniority Rules, 1991 has been referred to. Thisrule stipulates:- “8. Seniority where appointments by promotion anddirection recruitment.-

(1) Where according to the service rules appointments aremade both by promotion and by direct recruitment, theseniority of persons appointed shall, subject to the provisionsof the following sub-rules, be determined from the date of theorder of their substantive appointments, and if two or morepersons are appointed together, in the order in which theirnames are arranged in the appointment order:

Provided that if the appointment order specifies a particularback date, with effect from which a person is substantively A

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appointed, that date will be deemed to be the date of order ofsubstantive appointment and, in other cases, it will mean ofissuance of the order: Provided further that a candidaterecruited directly may lose his seniority, if he fails to joinwithout valid reasons, when vacancy is offered to him thedecision of the appointing authority as to the validity ofreasons, shall be final.

(2) The seniority inter se of persons appointed on the resultof any one selection,- (a) Through direct recruitment, shall be the same as it is shownin the merit list prepared by the Commission or by theCommittee, as the case may be; (b) by promotion, shall be as determined in accordance withthe principles laid down in Rule 6 or Rule 7, as the case maybe, according as the promotion are to be made from a singlefeeding cadre or several feeding cadres.

(3) Where appointments are made both by promotion and directrecruitment on the result of any one selection the seniority ofpromotes vis-à-vis direct recruits shall be determined in a cyclicorder (the first being a promotee) so far as may be, inaccordance with the quota prescribed for the two sources.

Illustrations

(1) Where the quota of promotes and direct recruits is in theproportion of 1:1 the seniority shall be in the following order- First … PromoteeSecond … Direct Recruits and so on.

(2) Where the said quota is in the proportion of 1:3 the seniorityshall be in the following order- First … PromoteeSecond to Fourth … Direct recruitsFifth … PromoteeSixth to eight … Direct recruits and so on:

Provided that-

(i) Where appointment from any source are made in excess ofthe prescribed quota, the persons appointed in excess of theprescribed quota, the persons appointed in excess of quotashall be pushed down, for seniority, to subsequent year oryears in which there are vacancies in accordance with thequota;

(ii) Where appointments from any source fall short of theprescribed quota and appointment against such unfilledvacancies are made in subsequent year or years, the personsso appointed shall not get seniority of any earlier year butshall get the seniority of the year in which their appointments,are made, so however, that their names shall be placed at thetop followed by the names, in the cyclic order of the otherappointees;

(iii) Where, in accordance with the service rules the unfilledvacancies from any source could, in the circumstancesmentioned in the relevant service rules be filled from the othersources and appointment in excess of quota are so made, thepersons so appointed shall get the seniority of that very yearas if they are appointed against the vacancies of their quota.”

9. Appellants have also argued against inclusion of the names ofexpired or superannuated persons in the selection list. Their contentionis that the names of the dead or superannuated persons ought not tohave been included at all in the selection list and those promotee officerswith seniority ranking lower than them ought to have been pushed upand accommodated in the position allocated to the dead or superannuatedofficers.

10. On the question of granting seniority to the directly recruitedofficers in the select list treating them as senior to the appellants, threeauthorities have been relied upon by the appellants. These are State ofUttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014) 14 SCC720], K. Meghachandra Singh & Ors. vs. Ningam Siro & Ors.[(2020) 5 SCC 689] and B. S. Murthy & Ors. vs. A. Ravinder Singh A

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A& Ors. [2022 SCC Online SC 317]. These decisions hold against givingretrospective seniority. In the case of B. S. Murthy (supra) it has beenheld:- “60. From the above discussion, it is clear that no appointeefrom any one channel (direct recruits or promotees) can layBclaim to seniority from a date before her or his appointment.That being the position in law, it would be now necessary toconsider the reasons which weighed with the High Court tohold that promotees (in regular and substantive capacity from1988) had to make way for direct recruits, who wereappointed in 1991-92. Simply stated, the High Court was ofCthe opinion that promotees had to be treated as occupyingposts in excess of the quota allocated to them, on anapplication of the 1986 OM. Now, as a matter of fact thematerials on record establish that there were promotevacancies at a time when the ban on direct recruitment was inDforce (during 1984-1990). To the query dated 11-06-2007,the Commissionerate concerned, at Hyderabad stated, in itsreply dated 30-08.2007, as follows:

“In this Commissionerate whatever vacancies occurredin a year, the same were divided in the ratio 3:1 duringthe period 1986 to 1990 and the share of vacancy whichcomes for direct recruit were reported to SSC and thepromotee quota vacancies were filled up by holdingDPC.”

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11. We agree with the argument of the appellant that birth in theFcadre first would automatically accord the seniority over and above thosewho are appointed at a later date. It has been held so in the case ofAshok Kumar Srivastava (supra). This principle, however, is to applyin absence of any contrary provision in the applicable service rule. In thepresent case this aspect has been addressed by the Division Bench inthe judgment delivered on 12[th]September 2012. We have quotedGparagraphs 11 and 12 of this judgment above. The opinion of the HighCourt in this judgment was that since there was a common requisition,the appointments should have been made only after preparing the combinedselect list and seniority ought to have been determined in accordancewith Rule 22. This part of the judgment has remained unaltered. Admitted H

position is that a review petition in relation to this judgment was filed butthe review judgment did not upset this finding of the Division Bench. Inthe decision under appeal, the Division Bench has relied on these twoparagraphs of the earlier judgment and come to its finding. Thus, so faras the appellants and other parties to this appeal are concerned, the saidfinding has attained finality and we cannot reopen this question in anappeal arising out of a subsequent proceeding on near identical factualbackground.

12. The appellants, however, point out that in determining seniorityin the 2013 list, Rule 22 has not been complied with as dates ofappointment have not been adhered to for such determination. This Rulecontemplates conferment of seniority as per original appointment order.We find from the judgment delivered in the year 2012 that while theDivision Bench found issue of appointment orders to the two categoriesof candidates before preparation of selection list to be contrary to law,the appointment orders themselves were not quashed. Neither was anyspecific date notionally directed to be taken as the date of appointment.

13. The High Court, in the earlier judgment found that complianceof Rule 17 was not made in preparing the seniority list of 1999. Thesubsequent selection list was made in terms of decision of the HighCourt delivered on 12[th]September 2012. The general principle of servicejurisprudence that seniority is required to be computed from the date ofactual entry into a particular cadre cannot operate in a case where thereis an undisturbed judicial finding that appointments were made ondifferent dates in breach of the applicable Rules. Moreover, selectionlist per se does not determine seniority as the said list is only to containnames of persons who are to be part of a particular cadre. In the 1979Rules also, selection list is to be prepared as per Rule 17 whereas seniorityis to be determined in terms of Rule 22. What the authorities have donein finalising the 2013 selection list is that positioning of incumbents in thislist have been made on the basis of their seniority. Thus, it has become acombined selection and seniority list.

14. We find that in the judgment under appeal, stand of theauthorities before the Division Bench on the question of fixing of senioritywas recorded as:- “He contends that so far as determination of seniority is concernedthe same has been done applying the quota and rota system meant A

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Afor the first place to promotees and second place to direct recruits,vis-à-vis the year of availability of respective vacancies.”

15. This practise, in our opinion, is contrary to the seniority orderas contemplated in Rule 17. The selection list stipulated how the vacancyBpositions shall be filled but for determination of seniority, the dates ofappointment were to be treated as dates of birth in the cadre. In relationto the two streams of entry, after they entered the cadre, their senioritywere to be decided on the basis of such dates of entry. In the presentproceeding, the manner in which appointment orders were issued wasCfound to be in breach of the provisions of Rule 17 in the first judgment.But neither the first judgment nor the judgment under appeal stipulatedin what manner the dates of birth into the cadre for individual candidatesfrom the two streams were be determined. We are not inclined to remandthis matter for that purpose, considering that the present dispute iscontinuing for about three decades. But since the main reasoning of theDHigh Court for deciding the matter was that selection from both streamswas made from a common recruitment process, in our opinion, the datesof appointment orders of both the streams ought to be treated from aparticular date and 30[th]January 1996, being the date on which theappointment letters of the promotee candidates were issued, would beEsuch date.

16. As regards the manner in which the names of the superannuatedand dead officers were to be dealt with, the High Court in its judgmentdelivered on 12[th]September 2012 has already given its findings anddirections. Those directions having attained finality, we are not takingFany decision in respect of that part of the controversy.

17. We, accordingly, hold and direct that the seniority of thecandidates including the appellants should be determined treating theentry into the cadre of both sets of candidates (i.e. promotees and directrecruits) on 30[th]January 1996 and the seniority position should be recastGon that basis. We issue this direction invoking our jurisdiction under Article142 of the Constitution of India. On the question of intra-stream seniority,the provision of Rule 22 shall be followed. In the recast list, however, theposition for the posts left vacant on death of dead or superannuatedofficers shall be treated as fresh vacancies and filled up through freshselection process.H

18. In the event any incumbent, whether superannuated or not atpresent, has already enjoyed career related benefit as per the seniorityposition made in terms of the judgment delivered on 22[nd]July 2014 theyshall not be disturbed, having regard to the long time-gap between theorigin of the dispute and its conclusion by this judgment. But any officerholding the subject-post, who would have derived career improvementfrom the recast seniority list shall be given such benefits. For thosesuperannuated, notional benefits shall be given.

19. The judgment under appeal shall stand modified accordingly,and the appeal shall stand disposed in the above terms.

20. Pending application(s), if any, shall stand disposed of.

21. There shall be no order as to costs.

Divya Pandey

Appeal disposed of.

(Assisted by : Prerna Deep and Roopanshi Virang, LCRAs)

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