Pawan Pratap Singh & Ors. V/s. Reevan Singh & Ors.

Rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies.

Case name: Pawan Pratap Singh & Ors. V/s. Reevan Singh & Ors.

Case Number: Civil appeal 9906, 9907, 9908 of 2003

Court: Supreme court of India

Bench: Justice Aftab Alam

            Justice R.M. Lodha

Decided on: FEBRUARY 10, 2011

Relevant acts/section: (Non-Gazetted) Service Rules, 1980, U.P. Govt. Servant Rules, 1991, Article 14, 16, 226, 309 of the Constitution

• BRIEF FACTS AND PROCEDURAL HISTORY:
• The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980 were framed by the Governor of the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution which were published in U.P. Gazette, Extraordinary on June 9, 1980. Rule 5 of the 1980 Rules deals with the recruitment to the posts of Deputy Jailor and Assistant Jailor in the service. The recruitment to the posts of Deputy Jailor is by two sources: (i) by direct recruitment and (ii) by promotion from amongst the permanent Assistant Jailors. Rule 15 provides for procedure for direct recruitment to the posts of Deputy Jailor and Assistant Jailor.
• On December 26, 1987, the UPPSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned in the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the cadre of Deputy Jailor notified by the UPPSC in the above advertisement but the stand of the first respondent that 114 vacancies of Deputy Jailors were notified may be assumed as fact for the purpose of these appeals.
• The Uttar Pradesh Subordinate Services Selection (Commission) Act, 1988 (for short, `1988 Act’) was enacted by the U.P. Legislature to establish a Subordinate Services Selection Commission for direct recruitment to all Group `C’ posts in the State of U.P. The 1988 Act came into force on February 15, 1988.
• On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987; the UPPSC conducted the preliminary examinations on September 24, 1989.
• On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a competitive examination, `U.P. Karapal (Deputy Jailor) Examination, 1990′ shall be held. The examination was held on due date and after holding oral interview, the Selection Commission sent a select list to the State Government in 1991 for issuance of appointment letters.
• On November 23, 1991, the State Government issued appointment letters to the candidates selected by the Selection Commission. The present appellants in Civil Appeal No. 9906 of 2003 and Civil Appeal No. 9908 of 2003 were amongst those who were appointed by the State Government pursuant to the selection made by the Selection Commission.
• In 1991, the UPPSC also conducted the main examination for filling up different posts of Group `C’ including the posts of direct recruitment of Deputy Jailor. The result thereof was declared on July 27, 1993. The UPPSC, then, sent the select list to the State Government. The State Government issued appointment letters to the selected candidates on April 26, 1994. The private first respondent was one of them.
• The Uttar Pradesh Government Servants Seniority Rules, 1991 (for short, `1991 Rules’) were framed under the proviso to Article 309 of the Constitution effective from March 20, 1991. The 1991 Rules were made applicable to all government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution and had overriding effect to other service rules. Rule 5 and rule 8 of the 1991 Rules which are relevant for the purposes of these appeals.
• On August 29, 1995, a tentative seniority list of Deputy Jailors was notified by the Inspector General (Prisons) – the appointing authority – and objections were called for from the concerned officers. In that list, the candidates appointed in 1991 were shown senior to the candidates appointed in 1994. The litigation between the two groups started with this list. The tentative seniority list dated August 29, 1995 came to be challenged before Allahabad High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138/2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919/2001).
• The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on December 2, 2002 and the High Court directed the State of Uttar Pradesh and the Director General (Prisons), Lucknow to treat the appointees of 1994 senior to 1991 appointees. The Division Bench held as follows: “In our opinion the correct interpretation of the proviso to Rule 5 of the U.P. Govt. Servant Rules, 1991 is that persons like the petitioner who were selected in the selection process which commenced in 1987 should be treated as senior to there (sic) selected in selection process which commenced in 1990.”
• The High Court held that 1991 Rules will prevail over 1980 Rules, if there is any conflict between the two Rules.
• Being not satisfied with the judgment of the High Court dated December 2, 2002, three appeals, by special leave, have been filed, one by the State of Uttar Pradesh and the other two by 1991 appointees.

• ISSUE BEFORE THE COURT:
• Whether the appeals are maintainable?
• Whether the petition filed by the Respondent no. 1 maintainable?
• Whether Rule 5 can be applied instead of Rule 8 of the 1991 Rules for purposes of determination of seniority?

• RATIO OF THE COURT:
• The court observed that It must be stated immediately that the recruitment to the posts of Deputy Jailor in the State of Uttar Pradesh is governed by the 1980 Rules which have been framed by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution. 1980 Rules provide for cadre of service, procedure for recruitment to the post of Deputy Jailor, reservation, academic qualifications, determination of vacancies, appointment, probation, confirmation and inter se seniority of persons appointed to the service.
• However, by subsequent Rules, namely, 1991 Rules which too were made by the Governor under the proviso to Article 309 of the Constitution, comprehensive provisions have been made for the determination of seniority of all government servants in the State of Uttar Pradesh. Rule 2 of the 1991 Rules says that these rules shall apply to all government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution and rule 3 gives to the 1991 Rules overriding  effect notwithstanding anything to the contrary contained in  earlier service rules.  In this view of the matter, inter se seniority amongst 1991 and 1994 appointees by direct recruitment has to be determined under the 1991 Rules and rule 22 of the 1980 Rules has to give way to the 1991 Rules.
• Now, insofar as 1991 Rules are concerned, the said Rules provide for determination of seniority in relation to different categories.  Rule 5 makes  provision for determination of seniority in cases where according to service rules, appointments are  made only by the direct recruitment. It would be seen that 1980 Rules are the relevant service  rules for appointment to the posts of Deputy Jailor.
• As per rule 5 of the 1980 Rules, there are two sources of recruitment to the post of Deputy Jailor; one, by direct recruitment and the other, by promotion from amongst the permanent Assistant Jailors in ratio of 50% each.  The word ‘only’ in rule 5 of the 1991 Rules is of significance and it becomes clear therefrom that rule 5 of the 1991 Rules has no application at all for determination of inter se seniority of the 1991 and 1994 appointees because 1980 Rules provide for appointment to the posts of Deputy Jailor by direct recruitment as well as by promotion. 
• It is only where service rules in the State of U.P. provide for appointments  by direct recruitment alone that rule 5 of 1991 Rules comes into play for determination of seniority and not otherwise. The reliance placed by the High Court upon second proviso to rule 5 of the 1991 Rules for determination of inter se seniority amongst 1991 and 1994 appointees is, thus,   misplaced.
• The court further observed that the High Court fell into grave error in not appreciating that rule 5 of the 1991 Rules operates where service rules provide for appointments by direct recruitment only. Rule 6 and rule 7 of the 1991 Rules also have no application as these rules provide for determination of seniority where appointments are made by promotion only from a single feeding cadre or only from several feeding cadres. These appeals are not concerned with the determination of inter se seniority between the promotees. Rule 8 of the 1991 Rules makes a provision for determination of seniority where according to service rules appointments are made both by promotion and by direct recruitment.
• The marginal note of rule 8 ‘seniority where appointments by promotion and direct recruitment’ and the body of sub-rule (1) of rule 8 that provides, ‘where according to the service rules appointments are made both by promotion and by direct recruitment’, leave no manner of doubt that rule 8 of the 1991 Rules would govern  the controversy in the present case since 1980 Rules clearly provide for appointments to the posts of Deputy Jailor by two sources i.e., by direct recruitment as well as by promotion.
• It is true that the controversy in hand relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor, one appointed in 1991 through the selection made by the Selection 1Commission and the other in 1994 by the UPPSC and the controversy does not relate to determination of inter se seniority between direct recruitees and the promotees, but that does not take away the applicability of rule 8 of the 1991 Rules.  It is so because in the 1991 Rules, the basis of categorization for the purpose of determination of seniority is the method and manner for appointments in the service rules.
• It is in this view of the matter that rule 5, rule 6, rule 7 and rule 8 of the 1991 Rules provide for determination of seniority amongst different categories of appointments made under the service rules. Once it is held that rule 8 is applicable for determination of inter se seniority amongst 1991 and 1994 recruitees to the posts of Deputy Jailor, it is clear that their seniority has to be determined on the basis of their substantive appointments. 
• the court held that Insofar as the present controversy is concerned, none of the provisos to sub-rule (1) is attracted since the appointment orders of 1994 appointees do not specify the back date nor these appeals are concerned with a situation where 1991 appointees failed to join on time. These appeals are also not concerned with seniority inter se of persons appointed on the result of one selection through direct recruitment or through direct recruitment and promotion in one selection and, therefore, provisions of sub-rules (2) and (3) of rule 8 are also not attracted.  Sub-rule (1) of rule 8 in unambiguous terms states that the seniority of persons, subject to the provisions of the sub-rules (2) and (3),  shall be determined from the date of the order of their substantive appointments.
• Rule 4(h) defines ‘substantive appointment’ as an appointment, not being an ad-hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups (1991 and 1994 appointees by direct recruitment) what is relevant is the date of the order of their substantive appointment and  since the substantive appointment of 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees.
• The court relied on Ram Janam Singh v. State of U.P. and Anr. , where this Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution.
• The court after relying on various precedents observed that the legal position with regard to determination of seniority in service can be summarized as follows :
• The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the 12 (1990) 2 SCC 715 2 issuance of advertisement or the factum of preparation of the select list, as the case may be.
• Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
• Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
• The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely 2 affect the employees who have been appointed validly in the mean time
• In light of the legal position summed up above and rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies.

1. The 1991 appointees having been appointed substantively much prior in point of time,  they are entitled to rank senior to 1994 appointees. As already noticed above, rule 5 of the 1991 Rules has no application for determination of inter se seniority of the Deputy Jailors appointed by Deputy recruitment in 1991 and 1994. The consideration of the matter by the High Court is apparently flawed and cannot be sustained.  In the present fact situation, it must be held that 1994 appointees cannot legitimately claim their seniority over 1991 appointees.
2. The court finally held that it is not necessary to deal with the objection raised by the appellants about maintainability of writ petition filed by contesting private respondent directly before the High Court bypassing the remedy before the State Service Tribunal.

• DECISION HELD BY COURT:
• For the foregoing reasons, these appeals were allowed; the judgment and order dated December 2, 2002 passed by the Allahabad High Court is set aside. The seniority of the two groups of direct recruits to the posts of Deputy Jailor, one appointed through the selection made by the Uttar Pradesh Subordinate Services Selection Commission in 1991 and the other by Uttar Pradesh Public Service Commission in 1994 shall be now determined as indicated above, if not determined in the manner stated above, so far.  There shall be no order as to costs.
• In view of the two separate judgments (which are concurrent in nature) pronounced by us in these appeals today, the appeals are allowed. There shall be no order as to costs.