Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1838 OF 2018
SUSHIL PANDEY & ANR. …APPELLANTS
VERSUS
STATE OF U.P. THR. PRINCIPAL
SECRETARY (HOME) & ORS. …RESPONDENTS
J U D G M E N T
ANIRUDDHA BOSE, J.
The subject of controversy in this appeal is legality of a selection
list for the posts of Assistant Radio Officers in the Uttar Pradesh Police
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Radio Department. This list was made on 25 October 2013, though
the dispute goes back to the year 1998. As per the Uttar Pradesh
Police Radio Service Rules, 1979 (“1979 Rules”), the vacancies in the
said posts are required to be filled up 50% through direct recruitment
and 50% by promotion from the feeder cadre (in this case Radio
Inspectors). The appellants before us are from the feeder cadre. There
have been several rounds of litigations in the past as regards
formulation of the seniority position and the judgment which is under
appeal before us, delivered by a Division of the High Court of
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judicature at Allahabad, Lucknow Bench on 22 July 2014 has in
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2023.01.17
16:56:45 IST
Reason:
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substance, sustained the seniority list of 25 October 2013. The
appellants have taken out an application (I.A. No. 163147 of 2021) for
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deletion of proforma respondent nos. 20 and 21. Respondent no. 21
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has passed away on 7 July 2017. So far as the said respondent is
concerned, the appeal has abated as against him. It has been pleaded
in this application that the Registry has informed that there is no
evidence of dasti services on the said two respondents. In the office
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report of 15 December 2015 (annexed as A1 to the application), it has
however been recorded that service of show-cause notice is complete
with respect to respondent no. 20. This has been followed by the order
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of the Court of Registrar dated 6 August 2018 (annexed as A3 to the
application), in which also it has been recorded that the respondents
have been duly served/represented. But no report to that effect is
available on records. In such circumstances, learned counsel for the
appellants has not pressed this application before us. This application
is dismissed as not pressed.
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2. Requisitions were sent on 11 January 1992 to the Uttar Pradesh
Public Service Commission (“the Commission”) for direct recruitment
against nineteen vacancies and forty-three vacancies from the Radio
Inspectors on permanent basis for the post of Assistant Radio
Inspector. These vacancies occurred in different years earlier. The
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Commission’s recommendations were made on 19 September 1995
for the subject posts so far as direct recruits are concerned. For
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promotee candidates, the recommendations were made on 26
December 1995. Sixteen promotee candidates were issued
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appointment letters on 31 January 1996 out of the forty-three
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recommended candidates as the remaining twenty-seven selected
candidates had attained the age of superannuation or died. The
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appointment of the direct recruits took place on 3 July 1996.
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3. A combined selection list was prepared on 10 December 1999, but
it was quashed by the High Court for being in violation of Rules 17 and
22 of the 1979 Rules, in a judgment delivered by a Division Bench of
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the same Court on 12 September 2012. This was a common
judgment delivered in three writ petitions. W.P. No. 711(SB) of 2000
was instituted by two Assistant Radio Officers from the reserved
category claiming promotion in the next higher post on the basis of
their stand that they were the most senior officers in that category. The
directly recruited candidates also questioned inter-se seniority with the
promotees in Writ Petition No. 104 (SB) of 2000. In Writ Petition No. 10
(SB) of 2000, promotee candidates challenged the same seniority list
on the ground that promotee officers were appointed prior to those
directly recruited and the directly recruited candidates ought not to be
placed above the promotee officers in the combined selection list. The
stand of the direct recruits was that as the requisitions for selection
were sent to the Commission simultaneously, a common selection list
ought to have been prepared and thereafter seniority should have been
fixed as per Rule 22. The other point on which the direct recruits
founded their case was in relation to inclusion in the seniority list the
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names of those promotees, who were superannuated or had passed
away. It appears that in their places in the selection list, other
promotee officers were pushed up. Contention of the direct recruits
before the High Court was those should have been declared as fresh
vacancies and should have been filled up through a fresh selection
process.
4. The 1979 Rules lay down the procedure for promotion to the
subject posts (along with other posts within the said service). So far as
the present appeal is concerned, Rules 5(1), 14, 15, 17 and 22 are
relevant. These Rules have been set out in the said judgment delivered
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on 12 September 2012. We quote below these rules, as recorded
therein:-
“Uttar Pradesh Police Radio Service Rules, 1979
5. Source of recruitment :- In service the recruitment shall
be made on the posts of different categories from the following
sources:-
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;
However from both the above sources the recruitment shall
be made in such a manner that 50 percent of the post retained
by the direct recruitment and 50 percent post by the persons
from promotions;
(2) Additional State Radio officer:-
By promotion on the basis of the seniority while rejecting
the unsuitability in the permanent Assistant Radio Officers
through the commission;
However if any suitable person is not available for
promotion, then the recruitment can be made from direct
recruitment;
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(3) State Radio officer:-
By promotion on the basis of the seniority while rejecting
the unsuitability in the permanent Assistant Radio Officers
through the Commission;
However if any suitable person is not available for
promotion, then the recruitment can be made from direct
recruitment;
(4) Dy. Inspector General of Police Telecom:
By promotion on the basis of the eligibility of the
permanent State Audio Officers through the Commission
However if any suitable person is not available for promotion,
then the recruitment can be made from direct recruitment under
Rule 15;
14. Determination of vacancies :- The appointing Authority shall
determine the number of vacancies to be filled up during the
year and the number of vacancies reserved for the candidates
of scheduled caste, scheduled tribe and other categories and
shall inform to the commission;
15. Procedure for direct recruitment :- The Commission shall
invite an application in the prescribed format, which can be
obtained from the Secretary of the Commission after making the
payment.
(2) The Commission under Rule 6 after considering the
assurance of due representations of candidates belonged to
Scheduled Castes, Scheduled Tribes and other categories, shall
invite the candidates for interview, who are fulfilling the
required eligibilities.
(3) The Commission shall prepare a list of the candidates, in
the serial of their proficiency, reflects from the marks secured
by the candidate in the oral examination. If two or more
candidate would secure the equal marks, then commission
shall keep their names for the services on the basis of the
general suitability in the serial of eligibility. The number of
names in the list shall be more than the vacancies, however not
more than 25 percent. The commission shall forward the list to
the Appointing Authority.
…..
17. Combined Selection list - If the appointment has been made
through direct recruitment and promotion both, then one
combined selection list would be prepared, wherein the name of
the candidates would be taken from the list prepared under
rule 15 and Rule 16 in such a manner that there would be an
ordained ratio of the direct recruitment and promotional officers.
The first name would be from the list prepared under rule 16.
…..
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22 - Seniority - The seniority of the post on any category of post
in the service, would be the same which has been determined
since the date of original appointment order and if two or more
persons have been appointed, then the same would be
determined in the serial, in which their names have been kept
in the appointment order.
However
One - The mutual seniority of the persons appointed in the
service as direct recruitment in the service, would be the same
as determined at the time of selection.
Two - the mutual seniority of the persons appointed through
the promotion in the service would be, which he was bearing on
the original post at the time of promotion.”
(quoted verbatim from the paperbook)
5. On the question of determination of seniority, it was held by the
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Division Bench in the judgment delivered on 12 September 2012:-
“11. The determination of seniority is a vital aspect in the
service career of an employee, his future promotion is
dependent on this, therefore, determination of his seniority
must be in strict compliance of the Rules governing the service.
This is also the mandate of Articles 14 and 16 of the
Constitution of India. It has been so held by three judges Bench
of the Hon’ble Apex Court in the case of Government Branch
Press Vs. D.B. Belliappa reported in [(1979) 1 SCC 477]. The
law is very clear that seniority is an incidence of service and
where service rules prescribe the method of its computation, it
must be adhered to strictly.
12. In the facts of this case, the vacancies were relating to
different years and vacancies were to be filled up by a common
requisition with regard to direct recruits and the promotes,
therefore, the selection made by the commission was made in a
particular year for vacancies of different years. Before issuing
appointment to the promote officers the recommendations
regarding direct recruits were also lying with the respondents
and no explanation could be furnished by learned counsel for
the respondents as to why compliance of Section 17 was not
made and appointment letters for promotes were issued.
Therefore, the compliance of Section 17, in our considered
opinion, was necessary and only after preparing the combined
select list, the appointment ought to have been made and
seniority was to be determined in accordance with Rule 22 of
the Rules, that has not been done in the present case.”
(quoted verbatim from the paperbook)
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6. As regards reflection of the names of superannuated officers and the
officers who had expired in the combined selection list, the Division
Bench found:-
“13. The other blunder that has been committed is that the
names of the superannuated/dead officers were removed from
the seniority list and in their place the other promote officers
were pushed up, this exercise is absolutely unheard in the
service jurisprudence. This mistake, by itself, made the
seniority list unsustainable under law. If this exercise of the
Respondents is permitted to prevail, then it would result in
great injustice to the officers who on their merit join the services
at an early age because in that situation, the officers who were
senior to them and are older in age shall stand superannuated
and in their place the officers who are junior to them shall be
pushed up making them juniors to officers, who were
subsequently appointed or were appointed in the vacancies of
the following years. The vacancies so fallen by the
superannuation or by the death of the officers were to be filled
up by way of fresh selection process, therefore, the impugned
seniority list is unsustainable under law and deserves to be
quashed.”
(quoted verbatim from the paperbook)
7. After delivery of the aforesaid judgment, the fresh selection list was
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prepared on 25 October 2013. This seniority list had been
unsuccessfully assailed by the appellants before the High Court. Main
argument of the writ petitioners therein was that the directives
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contained in the judgment of the Court delivered on 12 September
2012 were not complied with. The argument of the promotees to be
kept higher in seniority on the basis of their earlier entry into the cadre
was urged before the Division Bench. In the judgment under appeal,
however, the Division Bench repelled the challenge to the said seniority
list, inter-alia holding:-
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“We have given our thoughtful consideration to the aforesaid
arguments advanced and the facts on record and we find that
the impugned final seniority list dated 25th of October, 2013
categorically places the promotes and the direct recruits vis-à-
vis the year of vacancy serial wise beginning from the year
1990-1991. The placement as per the year of vacancy and the
names of such persons who were entitled to occupy the same
has not been questioned on any firm factual foundation. What
has been argued is that Rule 17 and Rule 22 has not been
complied with as noticed above. Having considered the
submissions raised we find that in the absence of any
averment indicating any factual fallacy in the year of placement
mentioned in the seniority list, the contention of the counsel for
the petitioner cannot be accepted.
The division bench while proceeding to issue directions had
observed that Rule 17 and 22 had not been shown to be
complied with when the earlier seniority list had been
circulated. The bench further observed that the State Counsel
had not been able to explain as to why such compliance with
regard to issuance of simultaneous letters of appointment had
not been made.
In the aforesaid circumstances what we find is that now the
rules appear to have been strictly complied with and it is in
compliance of such rules that the names of the respective
promotes and direct recruits one after the other have been
placed.
Sri Manish Kumar tried to question the correctness of the
said placement alleging that as against the direct recruits, the
space for year of vacancy has been left as blank without
mentioning the year of placement. The said argument cannot be
accepted, inasmuch as, the list appears to have been prepared
by placing first a promote and then the direct recruit according
to the year of vacancy.
This factual position could not be therefore successfully
assailed by the learned counsel for the petitioner on violation of
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 hold water.
We do not find any merit in the petition. The writ petition is
accordingly dismissed.”
(quoted verbatim from the paperbook)
8. So far as the seniority list of 2013 is concerned, the main grievance
of the appellants is that the direct recruits (who are the private
respondents in this appeal) were positioned as per the rota system in
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the combined list without mentioning the year of vacancies and the
promotees in respective vacancies of earlier years were ignored in the
process while fixing their seniority. The first appellant was positioned
at serial number 52 whereas second appellant was positioned at serial
number 48 and they were shown to be in respect of the vacancies for
the year 1993-1994. So, essentially the appellants are aggrieved on
two counts. The first is that the direct recruits have been placed in the
seniority list ignoring the year of vacancy. Secondly, they contend that
as their appointment and confirmation was prior to those from the
stream of direct recruits, the appellants were born into the cadre
earlier than the direct recruits. According to the appellants, on this
reasoning they should have been placed above the direct recruits in
the seniority list. What has been argued on this point is that the
selection list prepared under Rule 17 of the 1979 Rules deal with
apportionment of the vacant positions between promotee officers and
direct recruits but this list does not deal with the question of seniority.
In this regard, Rule 8 (3) (ii) of the U.P Government Servant Seniority
Rules, 1991 has been referred to. This rule stipulates:-
“8. Seniority where appointments by promotion and
direction recruitment.-
(1) Where according to the service rules appointments are made
both by promotion and by direct recruitment, the seniority of
persons appointed shall, subject to the provisions of the
following sub-rules, be determined from the date of the order of
their substantive appointments, and if two or more persons are
appointed together, in the order in which their names are
arranged in the appointment order:
Provided that if the appointment order specifies a particular
back date, with effect from which a person is substantively
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appointed, that date will be deemed to be the date of order of
substantive appointment and, in other cases, it will mean of
issuance of the order: Provided further that a candidate
recruited directly may lose his seniority, if he fails to join
without valid reasons, when vacancy is offered to him the
decision of the appointing authority as to the validity of
reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of
any one selection,-
(a) Through direct recruitment, shall be the same as it is shown
in the merit list prepared by the Commission or by the
Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the
principles laid down in Rule 6 or Rule 7, as the case may be,
according as the promotion are to be made from a single feeding
cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct
recruitment on the result of any one selection the seniority of
promotes vis-à-vis direct recruits shall be determined in a cyclic
order (the first being a promotee) so far as may be, in
accordance with the quota prescribed for the two sources.
Illustrations
(1) Where the quota of promotes and direct recruits is in the
proportion of 1:1 the seniority shall be in the following order-
First … Promotee
Second … Direct Recruits
and so on.
(2) Where the said quota is in the proportion of 1:3 the seniority
shall be in the following order-
First … Promotee
Second to Fourth … Direct recruits
Fifth … Promotee
Sixth to eight … Direct recruits
and so on:
Provided that-
(i) Where appointment from any source are made in excess of
the prescribed quota, the persons appointed in excess of the
prescribed quota, the persons appointed in excess of quota
shall be pushed down, for seniority, to subsequent year or
years in which there are vacancies in accordance with the
quota;
(ii) Where appointments from any source fall short of the
prescribed quota and appointment against such unfilled
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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) Where, in accordance with the service rules the unfilled
vacancies from any source could, in the circumstances
mentioned in the relevant service rules be filled from the other
sources and appointment in excess of quota are so made, the
persons so appointed shall get the seniority of that very year as
if they are appointed against the vacancies of their quota.”
(quoted verbatim from the paperbook)
9.
Appellants have also argued against inclusion of the names of
expired or superannuated persons in the selection list. Their
contention is that the names of the dead or superannuated persons
ought not to have been included at all in the selection list and those
promotee officers with seniority ranking lower than them ought to have
been pushed up and accommodated in the position allocated to the
dead or superannuated officers.
10. On the question of granting seniority to the directly recruited
officers in the select list treating them as senior to the appellants,
three authorities have been relied upon by the appellants. These are
State of Uttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014)
14 SCC 720], K. Meghachandra Singh & Ors. vs. Ningam Siro & Ors.
[(2020) 5 SCC 689] and B. S. Murthy & Ors. vs. A. Ravinder Singh &
Ors. [2022 SCC Online SC 317]. These decisions hold against giving
retrospective seniority. In the case of B. S. Murthy (supra) it has been
held:-
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“60. From the above discussion, it is clear that no appointee
from any one channel (direct recruits or promotees) can lay
claim to seniority from a date before her or his appointment.
That being the position in law, it would be now necessary to
consider the reasons which weighed with the High Court to
hold that promotees (in regular and substantive capacity from
1988) had to make way for direct recruits, who were appointed
in 1991-92. Simply stated, the High Court was of the opinion
that promotees had to be treated as occupying posts in excess
of the quota allocated to them, on an application of the 1986
OM. Now, as a matter of fact the materials on record establish
that there were promote vacancies at a time when the ban on
direct recruitment was in force (during 1984-1990). To the query
dated 11-06-2007, the Commissionerate concerned, at
Hyderabad stated, in its reply dated 30-08.2007, as follows:
“In this Commissionerate whatever vacancies
occurred in a year, the same were divided in the ratio
3:1 during the period 1986 to 1990 and the share of
vacancy which comes for direct recruit were reported
to SSC and the promotee quota vacancies were filled
up by holding DPC.”
11. We agree with the argument of the appellant that birth in the
cadre first would automatically accord the seniority over and above
those who are appointed at a later date. It has been held so in the case
of Ashok Kumar Srivastava (supra). This principle, however, is to
apply in absence of any contrary provision in the applicable service
rule. In the present case this aspect has been addressed by the
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Division Bench in the judgment delivered on 12 September 2012. We
have quoted paragraphs 11 and 12 of this judgment above. The
opinion of the High Court in this judgment was that since there was a
common requisition, the appointments should have been made only
after preparing the combined select list and seniority ought to have
been determined in accordance with Rule 22. This part of the
judgment has remained unaltered. Admitted position is that a review
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petition in relation to this judgment was filed but the review judgment
did not upset this finding of the Division Bench. In the decision under
appeal, the Division Bench has relied on these two paragraphs of the
earlier judgment and come to its finding. Thus, so far as the appellants
and other parties to this appeal are concerned, the said finding has
attained finality and we cannot reopen this question in an appeal
arising out of a subsequent proceeding on near identical factual
background.
12.
The appellants, however, point out that in determining seniority in
the 2013 list, Rule 22 has not been complied with as dates of
appointment have not been adhered to for such determination. This
Rule contemplates conferment of seniority as per original appointment
order. We find from the judgment delivered in the year 2012 that while
the Division Bench found issue of appointment orders to the two
categories of candidates before preparation of selection list to be
contrary to law, the appointment orders themselves were not quashed.
Neither was any specific date notionally directed to be taken as the
date of appointment.
13. The High Court, in the earlier judgment found that compliance of
Rule 17 was not made in preparing the seniority list of 1999. The
subsequent selection list was made in terms of decision of the High
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Court delivered on 12 September 2012. The general principle of
service jurisprudence that seniority is required to be computed from
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the date of actual entry into a particular cadre cannot operate in a
case where there is an undisturbed judicial finding that appointments
were made on different dates in breach of the applicable Rules.
Moreover, selection list per se does not determine seniority as the said
list is only to contain names of persons who are to be part of a
particular cadre. In the 1979 Rules also, selection list is to be prepared
as per Rule 17 whereas seniority is to be determined in terms of Rule
22. What the authorities have done in finalising the 2013 selection list
is that positioning of incumbents in this list have been made on the
basis of their seniority. Thus, it has become a combined selection and
seniority list.
14. We find that in the judgment under appeal, stand of the
authorities before the Division Bench on the question of fixing of
seniority was recorded as:-
“He contends that so far as determination of seniority is
concerned the same has been done applying the quota and
rota system meant for the first place to promotees and second
place to direct recruits, vis-à-vis the year of availability of
respective vacancies.”
(quoted verbatim from the paperbook)
15. This practise, in our opinion, is contrary to the seniority order as
contemplated in Rule 17. The selection list stipulated how the vacancy
positions shall be filled but for determination of seniority, the dates of
appointment were to be treated as dates of birth in the cadre. In
relation to the two streams of entry, after they entered the cadre, their
seniority were to be decided on the basis of such dates of entry. In the
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present proceeding, the manner in which appointment orders were
issued was found to be in breach of the provisions of Rule 17 in the
first judgment. But neither the first judgment nor the judgment under
appeal stipulated in what manner the dates of birth into the cadre for
individual candidates from the two streams were be determined. We
are not inclined to remand this matter for that purpose, considering
that the present dispute is continuing for about three decades. But
since the main reasoning of the High Court for deciding the matter was
that selection from both streams was made from a common
recruitment process, in our opinion, the dates of appointment orders of
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both the streams ought to be treated from a particular date and 30
January 1996, being the date on which the appointment letters of the
promotee candidates were issued, would be such date.
16. As regards the manner in which the names of the superannuated
and dead officers were to be dealt with, the High Court in its judgment
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delivered on 12 September 2012 has already given its findings and
directions. Those directions having attained finality, we are not taking
any decision in respect of that part of the controversy.
17. We, accordingly, hold and direct that the seniority of the
candidates including the appellants should be determined treating the
entry into the cadre of both sets of candidates (i.e. promotees and
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direct recruits) on 30 January 1996 and the seniority position should
be recast on that basis. We issue this direction invoking our
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jurisdiction under Article 142 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, the position for the posts left
vacant on death of dead or superannuated officers shall be treated as
fresh vacancies and filled up through fresh selection process.
18. In the event any incumbent, whether superannuated or not at
present, has already enjoyed career related benefit as per the seniority
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position made in terms of the judgment delivered on 22 July 2014
they shall not be disturbed, having regard to the long time-gap
between the origin of the dispute and its conclusion by this judgment.
But any officer holding the subject-post, who would have derived
career improvement from the recast seniority list shall be given such
benefits. For those superannuated, 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.
…..........................J.
(AJAY RASTOGI)
…...........................J.
(ANIRUDDHA BOSE)
NEW DELHI;
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16 January, 2023.
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