Full Judgment Text
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CASE NO.:
Appeal (civil) 5573 of 2006
PETITIONER:
State of Uttaranchal & Anr .... Appellant (s)
RESPONDENT:
Dinesh Kumar Sharma ....Respondent(s)
DATE OF JUDGMENT: 04/12/2006
BENCH:
Dr. AR. Lakshmanan & Altamas Kabir
JUDGMENT:
JUDGMENT
(Arising out of SLP (C) No. 12966/2005)
Dr. AR.Lakshmanan, J
Leave granted.
This civil appeal is preferred against the final order and
judgment of the High Court of Uttaranchal at Nainital, which
held that, it was appropriate to consider the grant of
discretionary relief to the Respondent in his promotion and
consequential benefits.
The brief facts of the present matter are enumerated
below.
On 25.10.1977, the respondent, Mr. Dinesh Kumar
Sharma was appointed as Subordinate Agriculture Services
Group-I on the post of Senior Chemical Assistant, Research
(Chemistry) Branch through the Public Service Commission,
U.P. Allahabad. Fifteen years service in Subordinate
Agriculture Service Group-I is the eligibility criteria for being
considered for next higher promotion. In the year 1992-93,
respondent became eligible for the said promotion.
On 31.03.1995, the Governor of Uttar Pradesh
promulgated U.P. Agricultural Group II Service Rules 1995
providing for the selection, appointments, probation, seniority,
promotion etc. Rule 21 states that the date of substantive
appointment will be the basis of promotion. On 01.04.1996
and 01.05.1996, two class-II posts in the Hill sub cadre
became vacant due to retirement of two officers. These
appointments were to be made by Direct Recruitment as well
as Promotion. Rule 17 states that, if in any year of recruitment
appointments are made both by direct recruitment and
promotion a combined select list be prepared by taking the
names from the relevant list and "the first name in the list will
be of the person appointed by promotion".
On 19.11.1999, the Secretary to government of Uttar
Pradesh of the Agriculture Department issued an order
conveying that the respondent has been selected for
subordinate Agriculture Service Class-I (Chemistry) in the
substantive vacancy for the year 1997-98 in the scale of
Rs.8000-275-13500, after consultation with the State Public
Service Commission.
On 04.04.2001, the U.P Government Agriculture
Department issued an order directing that those employees
who were already members of the Hill Sub Cadre and posted
at Uttaranchal have been finally allocated to Uttaranchal
Government in which the name of the respondent was shown
at serial No.30.
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Thereafter on 17.07.2001 & 27.05.2002, the respondent
made two representations to the Department contending that
his seniority may be counted from the year 1995-96 with all
the consequential benefits as the vacancies fell vacant in that
year. Further on 12.06.2002, the respondent made another
representation stating that his earlier two representations
were not decided upon and that he should be promoted with
effect from the date of occurrence of vacancy.
On 01.10.2002, the Government of Uttaranchal issued
Office Memorandum conveying its decision of rejecting the
claim made by the respondent.
The respondent filed Writ petition No.369/2004 on
21.11.2004 praying the High Court to issue a writ of
Mandamus to promote him with effect from 1995-96 with all
consequential benefits. However, the respondent in his writ
petition has suppressed the fact that the Government had
denied the claim the respondent had made by way of
representations dated 17.07.2001, 27.05.2002 and
12.06.2002. The appellants filed their counter affidavit stating
the rejection of the claim of the respondent in the High Court
on 23.03.2005.
The Division Bench of the High Court of Uttaranchal vide
its final order and judgment dated 29.03.2005 held that, "the
Government is directed to re-consider the matter and send it
back to the Commissioner for appropriate orders suitable in
the facts and circumstances of the case."
It is against this order of the High Court the appellants
are before this Court by way of special leave.
After a perusal of the facts involved here, we feel that the
issues that need to be addressed by us in this case are:
i) Whether the respondent has the right to claim
promotion and seniority from 1995-96 when the
vacancy arose or whether his seniority will be
reckoned from the date of substantive appointment
which is in the year 1999.
ii) Whether the High Court was justified in overlooking
and ignoring the provisions of the U.P. Government
Servants Seniority Rules, 1991 and grant a relief in
favour of the respondents.
We heard Mr. Gaurav Banerjee, learned Addl. Advocate
General, appearing for the appellant the State of Uttaranchal,
and Mr. Satyajit A. Desai, learned counsel appearing for the
respondent.
Learned Addl. Advocate General submitted on behalf of the
appellants that the promotion and seniority are determined by
applying The U.P. Government Servants Seniority Rules, 1991
and The Uttar Pradesh Agriculture Group "B" Service Rules,
1995. According to these Rules and settled legal position by
way of decisions of this Court it is clear that, to claim
promotion and seniority from the years 1995-96 when the
vacancy arose is unreasonable and unsustainable.
It was submitted by the appellants that the High Court was
not justified in overlooking and ignoring the U.P. State
Agriculture Group II proviso to Article 309 of the Constitution
of India which have been held to be binding by a decision of
this court in the case of K.V. Subba Rao & Ors. vs.
Government of Andhra Pradesh & Ors. 1988 (2) SCC 201,
where this Court held that, promotion and seniority shall be
reckoned from the date of appointment not retrospectively
from the date when the vacancy arose.
It was further submitted that the decision to promote the
respondent was taken by the appellants in accordance with
the Service Regulations present in U.P and that no
interference could be made to such orders. Also that, the High
Court was not justified in overlooking the Statute Law as well
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as the case laws where it is stated in clear terms that,
seniority is determinable with reference to the date of
substantive appointment. This was the view taken by this
Court in K.V. Subba Rao & Ors. vs. Government of Andhra
Pradesh & Ors. (supra) Smt. M. Nirmala & Ors vs. State of
Andhra Pradesh & Ors. 1986 (3) SCC 647 and Sanjay K.
Sinha-II & Ors vs. State of Bihar & Ors 2004 (10) SCC 734.
In all these cases this Court has categorically held that
seniority must be reckoned from the date of substantive
appointment under the relevant rules and also that the right
to frame rules for the determination of inter-se seniority is the
prerogative of the State.
Concluding his arguments Learned Addl. Advocate General
stated that the High Court was not justified in overlooking and
ignoring the provisions of the U.P. Government Servants
Seniority Rules, 1991 and various decisions of this Court in
the subject and grant a relief in favour of the respondents. It
was also contended that the High Court was not justified in
overlooking the fact of suppression of material facts indulged
by the respondent when he approached the High Court.
Mr. Satyajit.A.Desai, learned counsel appearing for the
respondent submitted that the High Court rightly noticed that
the appellant authority had failed to appreciate that the
vacancy arose in the year 1995-96 i.e. on 01.05.1996 and
second vacancy on 01.06.1996 and this fact had come to the
knowledge of the Commission, the Commission could have
given promotion to the respondent w.e.f. those dates as the
respondent was entitled for the same, since the Commission
has found him suitable for the post which is evident from the
promotion order dated 19.11.1999. Thus the said lapse on the
part of the appellant authority in communicating the
authentic and correct date of vacancy to the Commission has
a serious effect on the consequential benefits of the
respondent. Therefore, it was rightly held by the High Court
that, ’the order dated 01.10.2002 clearly suffers from the non-
application of mind and is hereby liable to be ignored. This is
more so in view of the fact that the vacancy had fallen on
01.05.1996 and 01.06.1996 in the recruitment year 1995-
1996 for two posts in Hill Sub-cadre II are not disputed by the
respondents. Thus in that eventuality the respondent cannot
be made to suffer on account of delay in recommendation by
the Director of Agriculture for promotion of the respondent.’
It was then submitted that, the approach of the appellant
authority in holding that "there would be no change in the
ranking since the order of substantive appointment was
communicated on 19.11.1999 and therefore the promotion can
be granted only from the date of substantive appointment" is
basically wrong and illegal and dehors the established
principles of service jurisprudence and that the said reasoning
goes without any support from the concerned service rules as
well.
The respondents argued that, it was admitted by the
appellant/State before the High Court that the post on
promotion quota had become vacant in April 1996 and
another post had become vacant in May 1996 on the
respective retirement of Shri Mohan Prakash Joshi and Sri
Krishna Pandey and the respondent being the senior-most
employee and belonging to the hill-cadre ought to have been
appointed against the first available vacancy i.e. April, 1996.
However, Shri Shyam Singh who was from the plain cadre
came to be appointed wrongly out of turn. Since the promotion
of the respondent has been recommended on these vacancies,
it becomes all the more necessary that promotion and
seniority has to be given effect to from the year 1995-96 when
the vacancy actually arose. Rule 17 of the Uttar Pradesh
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Agriculture Group "B" Service Rules, 1995 and Rule 8 of the
U.P. Government Servants Seniority Rules, 1991, specifically
provide that the vacancy should be counted from the year
when it is created. It further emphasizes that in case of direct
selection and selection by promotion if created in the same
year in that situation the person coming through promotion
quota should be treated as senior.
It was submitted that the denial of the effect to the
promotion from 1995-96 affects the overall seniority of the
appellant as well as his seniority in Class II for all purposes
including pension. This is more so in view of the fact that the
respondent has been already officiated on the said promotional
post from 28.05.1994 itself as per the directions of the
Additional Director, Uttaranchal. Moreover, it is an admitted
fact that the record of the respondent has throughout been
absolutely clean and unblemished and thus in the absence of
any adverse remarks against him there is no justification to
deny him promotion w.e.f. May 1996.
It was submitted that the contentions regarding
suppression of facts by the respondent before the High Court,
as raised by the appellant authority in the present appeal are
completely unjustified, baseless, unfair and inconsequential
and that the substantive prayer of the respondent before the
High Court was regarding the issuance of a writ of mandamus
thereby directing the appellant to promote the respondent
w.e.f. 1995-96 when the vacancies actually arose and to give
all the consequential benefits therein. It was submitted that
the order dated 1.10.2002 was before the High Court and it
had given sufficient consideration by discussing it thread-bare
while passing the impugned order in question. Thus it is clear
that the respondent was not acting malafide or suppressing
vital facts from the High Court.
We heard the parties in detail and have perused all the
records placed before us in this Court and we are of the view
that the arguments of the appellants merit acceptance.
With regard to the issue as to whether the respondent has
the right to claim promotion and seniority from 1995-96 when
the vacancy arose or whether seniority will be reckoned from
the date of substantive appointment which is 1999, it can be
observed that an employee will be considered member of a
cadre from the date of his/her substantive appointment in the
cadre after selection.
Substantive appointment is defined under Rule 3 (k) of the
Uttar Pradesh Agriculture Group "B" Service Rules, 1995
where:
"Substantive appointment" means the appointment not
being an ad-hoc appointment, on a post in the cadre of
the service, made after selection in accordance with the
rules and if there are no rules, in accordance with the
procedure prescribed for the time being by executive
instructions issued by the Government.
Therefore it is clear that unless a selection is made in
accordance with the rules and in the absence of rules, in
accordance with the procedure prescribed for the time being
by executive instructions issued by the Government and there
can be no automatic promotion or appointment to any post on
the recommendation of the Public Service Commission, unless
the government sanctions such promotion and appointment.
The perusal of Rule 17 of the Uttar Pradesh Agriculture
Group "B" Service Rules, 1995 and Rule 8 of the U.P.
Government Servants Seniority Rules, 1991, deserves
importance at this stage. Rule 17 states that:
If in any year of recruitment appointments are made
both by direct recruitment and by promotion, a
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combined select list in respect of the concerned
selection shall be prepared by taking the names of
candidates from the relevant lists, in such manner that
the prescribed percentage is maintained, the first name
in the list being of the person appointed by promotion.
This being so, Rule 21 states that:
Seniority- The seniority of persons substantively
appointed in any category of posts shall be determined
in accordance with the Uttar Pradesh Government
Servants Seniority Rules, 1991, as amended from time
to time.
Rule 8 of the 1991 Rules state that:
8. Seniority where appointments by promotion and
direct recruitment:
(1)\005
(2)\005
(3)\005
Provided that
(i)\005
(ii) where appointment from any source fall short of the
prescribed quota and appointment against such unfilled
vacancies are made in subsequent year or years, the
persons so appointed shall not get seniority of any
earlier year but shall get the seniority of the year in
which their appointments are made, so however, that
their names shall be placed at the top followed by the
names in the cyclic order of the other appointees;
(iii)\005
It is clear from the above that a person appointed on
promotion shall not get seniority of any earlier year but shall
get the seniority of the year in which his/her appointment is
made. Therefore, in the present fact situation the respondent
cannot claim promotion from the date of occurrence of the
vacancy which is 1995-96 but can only get promotion and
seniority from the time he has been substantively appointed
i.e. from 1999. Likewise, the seniority also will be counted
against the promotion/appointment in the cadre from the date
of issuance of order of substantive appointment in the said
cadre, i.e. from 19.11.1999.
In a recent judgment of this court in Uttaranchal Forest
Rangers Association (Direct Recruit) & Ors vs. State of
U.P.& Ors 2006(9) Scale 577, (Dr. AR. Lakshmanan and
Tarun Chatterjee) this Court was of the view that seniority has
to be decided on the basis of Rules in force on the date of
appointment, no retrospective promotion or seniority can be
granted from a date when an employee has not even been
borne in the cadre. Similar view was taken by this Court in
the case of K.C.Joshi vs. Union of India 1992 Suppl (1) SCC
272.
In State of Bihar & Ors vs. Akhouri Sachidananda
Nath & Ors 1991 Suppl. (1) SCC 334, this Court observed
that:
"12. In the instant case, the promotee respondents 6 to
23 were not borne in the cadre of Assistant Engineer in
the Bihar Engineering Service, Class II at the time when
the respondents 1 to 5 were directly recruited to the
post of Assistant Engineer and as such they cannot be
given seniority in the service of Assistant Engineers over
the respondents 1 to 5. It is well settled that no person
can be promoted with retrospective effect from a date
when he was not borne in the cadre so as to adversely
affect others. It is well settled by several decisions of
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this Court that amongst members of the same grade
seniority is reckoned from the date of their initial entry
into the service. In other words, seniority inter-se
amongst the Assistant Engineers in Bihar Engineering
Service, Class II will be considered from the date of the
length of service rendered as Assistant Engineers. This
being the position in law the respondents 6 to 23 can
not be made senior to the respondents 1 to 5 by the
impugned Government orders as they entered into the
said Service by promotion after the respondents 1 to 5
were directly recruited in the quota of direct recruits.
The judgment of the High Court quashing the impugned
Government orders made in annexures, 8, 9 and 10 is
unexceptionable."
This court in Vinodanand Yadav & Ors v. State of
Bihar & Ors, 1994 Suppl. (2) SCC 44, held:
"On an issue regarding the inter se seniority among the
direct recruits and promotees the Court applying the
ratio of State of Bihar v. Akhouri Sachindananda
Nath held that the appellants who were direct recruits
shall be considered senior over the promotees not borne
on the cadre when the direct recruits were appointed in
service. Hence the gradation list drawn under which
promotees were given seniority over direct recruits could
not be sustained and was thereby set aside".
We are also of the view that the right to constitute the
selection committee against the vacancy is vested in the
government, and after adopting the due procedure of selection,
the respondent had been substantively appointed by an order
issued by the Secretary, Agriculture, Government of U.P dated
19.11.1999 and this decision of the Government in our view
does not call for interference. The order is reproduced as
under:
"Government of U.P
Agriculture: Section-I
No. 5653/12-1-99-232/96
Lucknow,
19.11.1999
OFFICE- MEMO
Regarding promotions of Sub-ordinate-Agricultural
Services Class-I (Chemistry Branch) as reserved for
temporary posts and also for the appointments to
regular posts in Agricultural Services Group ’B’ Service
Rules 1995 as provided therein and according to the
provision of U.P.Public Service Commission Advisory
Committee for the promotions of selected candidates
(Procedure & Rules of 1970) and according to the advice
and on the basis of the circumstantial provisions of
U.P.Public Service Commission, Allahabad, regarding
the selection procedural basis the Hon’ble Governor had
recommended the name of Shri. Dinesh Kumar Sharma
of Sub-ordinate Agricultural Services Class-I (Chemistry
Branch) for being filled against the vacancy so created
and existed in the year 1997-98 to the post of Assistant
Mrida Chemist to the pay scale of Rs.8000/--275/--
13,500/- being Regular Temporary appointment is
hereby being recommended.
2. Accordingly Shri Sharma is being appointed to the
vacant post of Asst. Mrida Chemist at Haldwani,
Nainital.
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Sd/-
Kesav Desh Raju
Secretary"
The representations of the respondent dated 17.07.2001
and 27.05.2002 were received by the office of respondent No.1.
The said representations of the respondent had been decided
by the appellant by a well reasoned and speaking order vide its
office memo dated 01.10.2002. It is pertinent to mention here
that the respondent had concealed this fact, that his
representation has been decided by respondent No.1 long
before filing of this writ petition. Thus, the respondent by
misleading the Court has obtained the order dated 25.11.2004
from the High Court that the appellant shall decide the
representation which has been already decided by the
appellant on 01.10.2002.
Another issue that deserves consideration is whether the
year in which the vacancy accrues can have any relevance for
the purpose of determining the seniority irrespective of the fact
when the persons are recruited. Here the respondent’s
contention is that since the vacancy arose in 1995-96 he
should be given promotion and seniority from that year and
not from 1999, when his actual appointment letter was issued
by the appellant. This cannot be allowed as no retrospective
effect can be given to the order of appointment order under the
Rules nor is such contention reasonable to normal parlance.
This was the view taken by this Court in the case of Jagdish
Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC
456.
Coming to the question of whether the High Court was
justified in overlooking and ignoring the provisions of the U.P.
Government Servants Seniority Rules, 1991 and grant a relief
in favour of the respondents, it will be helpful to reproduce the
High Court’s order:
"From the perusal of the aforesaid order, it is clear that
the authority has not applied its mind on the facts of
the case as stated by the petitioner, in the
representation, and has rejected the representation on
the ground that since the appointment letter was issued
to the petitioner on 19.11.1999, therefore he is entitled
to his seniority from that date. Even if the recruitment
year is changed the order of appointment cannot be
made with retrospective effect. The authority has failed
to appreciate that if the fact of vacancy being accrued in
the recruitment year 1995-96 i.e. on 1st May, 1996 and
second vacancy on 1st June 1996 had come to the
knowledge of the Commission the Commission could
have given the promotion to the petitioner w.e.f. these
dates, as the petitioner was entitled for the same and
the Commission has found him suitable, which is
evident from the promotion order dated 19.11.1999.
Therefore, this could have consequently affected the
consequential benefits available to the petitioner had his
promotion being made w.e.f. the date of promotion of
falling of vacancy. Therefore, the order dated 1st
October, 2002 suffers from non application of mind and
is hereby liable to be ignored."
"The fact that the vacancy had fallen on 1st May, 1996
and 1st June, 1996 in the recruitment year 1995-96 are
not disputed by the respondents. The petitioner cannot
be made to suffer on account of delay in
recommendation by the Director of Agriculture for
promotion of the petitioner. The petitioner cannot be
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held responsible and cannot be made to suffer as such
became entitled to be considered for promotion on 1st
May, 1996. Therefore, the government is directed to re-
consider the matter and send it back to the Commission
for appropriate orders suitable in the facts and
circumstances of the case. Subject to the above, the writ
petition is disposed off finally."
This observation of the High Court in our view is
erroneous. The High Court while observing that, "the
appellants rejected the representation of the respondents
on the ground that since the appointment letter was
issued to the respondent on 19.11.1999, he is entitled to
his seniority from that date. The authority has failed to
appreciate that if the fact of vacancy being accrued in the
recruitment year 1995-96 i.e. on 1st May, 1996 and second
vacancy on 1st June 1996 had come to the knowledge of
the Commission the Commission could have given the
promotion to the petitioner w.e.f. these dates, as the
petitioner was entitled for the same and the Commission
has found him suitable, which is evident from the
promotion order dated 19.11.1999", has committed an error
in understanding and appreciating Rule 17 and 21 of the Uttar
Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8
of the U.P. Government Servants Seniority Rules, 1991, which
categorically states that the date of ’substantive appointment’
will be the date that shall be taken for determining promotion,
seniority and other benefits.
It is also to be noted that the representation of the
respondent dated 17.07.2001 and 27.05.2002 were received
by the office of appellant. The said representations of the
respondent have been already decided by the appellant by its
well reasoned and speaking order vide its office memo dated
01.10.2002. It will be of benefit to reproduce the office memo
here:
"Government of Uttaranchal
Agricultural and Agricultural Marketing Section
No. 133/V.I.P/ Aagri/232/96
Dehradun: Dated: 1. October 2002
OFFICE MEMO
Shri D.K. Sharma Asstt. Director (Soil Testing and
Exhibition Centre) Regional Land Testing Laboratory,
Rudrapur, Udhamsingh Nagar, in his applications dated
17.07.2001 and 27.05.2002 has stated that vacancies
had arisen on the retirement of Shri Mohan Prakash
Joshi and Shri Krishna Pandey, Agricultural Service,
Grade-II, Department of chemistry, from Government
Service on 30.04.1996 and since the vacancies existed
prior to July 1996 in accordance with the UP
Agricultural Services Group B Rules, his promotion
should have been effected in the vacancy arising in the
selection year 1995-96 from 1.05.1996, while he was
promoted against the vacancies arising out of the
selection year 1997-98 and therefore his promotion
should be made against the vacancy arising in the year
1995-96 and Addl. Director Agricultural and Land
Preservation in his letter No. Estab-1/Class II/2001-
02/1648 dated 15.09.2001 had recommended the
same.
2. In regard to the application of Shri Sharma, whose
promotion was made in consultation by the UP Public
Service Commission, Allahabad, in accordance with the
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Public Service(Procedure) Rules, 1970, towards the
vacancies for the Recruitment year 1997-98 vide Office
Memo No. 5653 dated 19.11.1991; I am to state that
even if the recruitment year of Shri Sharma is to be
taken as 1995-96 rather than 1997-98 even then the
date of substantive appointment would remain the same
being the date the order had been issued. Since Shri
Sharma’s promotion in respect of the vacancies of the
Recruitment year 1997-98 was issued on 19.11.99,
therefore the date on which the said order of promotion
has been issued being 19.11.1999 it shall remain the
date of Shri Sharma’s substantive appointment after
promotion. As regards the question of entitlement of
Shri Sharma to the benefit of the selection grade salary
upon selection against the vacancies of 1995-96, the
benefit of selection grade salary is available only in the
promoted post if the officer is working in the said post
for the stipulated period. The grant of promotion pay is
for the service after the date of the promotion and not
from the date the vacancy arose in the recruitment year.
3. In the light of the above, the applications of Shri
D.K. Sharma dated 17.07.2001 and 25.05.2002 are
hereby disposed off.
B.P. Pandey
Secretary."
In our opinion, the High Court should not have interfered
with this finding of the Appellants and directed them to
"consider" the representation of the respondent, which in
effect will amount to the reconsideration of the claim made by
the respondent.
In the result, we allow the civil appeal filed in this court
by the Appellant, the State of Uttaranchal and set aside the
judgment dated 29.03.2005 of the High Court of Uttaranchal.
However, we are not ordering costs.