Holding

Promotions made under different rules and back‑dated to different recruitment years cannot be treated as notionally from the same date; therefore the seniority list dated 12 July 2000 stands and the High Court’s order quashing it is set aside.

Summary

The case concerned seniority of Excise Inspectors promoted to Assistant Excise Commissioner (AEC) under two different Departmental Promotion Committees (DPCs). One DPC (19‑Dec‑1998) promoted officers on a merit basis under the pre‑1994 rules, while a second DPC (22‑Jan‑1999) promoted others on a seniority‑subject‑to‑rejection basis under the amended 1994 rules. Although all postings were made on the same day, the promotions were back‑dated to different recruitment years. The Allahabad High Court held that inter‑se seniority should be fixed as in the feeder cadre and quashed the seniority list dated 12‑July‑2000. The Supreme Court found the High Court erred in treating the two sets of promotions as notionally from the same date, noting the statutory rule that seniority is determined by the recruitment year (Rule 3(1), Rules 1992) and that promotions made in different years cannot be treated as equal. It also held that an interim order cannot confer a lasting advantage and must be neutralised. Consequently, the seniority list of 12‑July‑2000 was upheld and the High Court’s order set aside.

Issues considered

The correct method for fixing inter‑se seniority of officers promoted under different DPCs and rules.
Whether promotions back‑dated to different recruitment years can be treated as notionally from the same date for seniority purposes.
Whether an interim order granting seniority can have lasting effect after the final order dismisses the petition.

Subjects

senioritypromotionservice lawinter se seniorityinterim orderrestitutionequityU.P. Excise ServiceDepartmental Promotion Committeenotional promotionRule 3(1)Rule 6

Judgment

[2009] 15 (ADDL.) S.G.R. 1010

A AMARJEET SINGH & ORS.
~
v. "
DEVI RATAN & ORS. ~

(Civil Appeal Nos.5790-92 of 2002)
NOVEMBER 18, 2009 '
I

B [HARJIT SINGH BEDI AND DR. B.S. CHAUHAN, JJ.]
i-
Service Law:
)._ l
Seniority-Employees promoted by two successive DPCs
under different criteria, but postings given to all on one and the
c same day - Seniority list prepared showing the employees
promoted by earlier DPC as senior to those promoted later -
Challenged, claiming that postings to all given on one and the
same day, the seniority in the feeder cadre should be
maintained - Held: High Court has misdirected itself
D considering that both set$ of officers were given notional
promotion from one and the same date, which, in fact, is not
factually correct- Keeping in view r.3(1) of the U.P. Assistant
Excise Commissioners Service Rules, 1992, the year of
recruitment is to be considered for the purpose of fixing inter
se seniority of the officers taking into consideration the officers
E promoted within a period of 12 months from 1st day of July of
the year - Therefore, if promotions have retrospectively been
given to a particular set of officers in the year 1995 and to
another set of offices in the years 1997 and 1998, they cannot
be treated at par and cannot be treated as equals merely ,,
F because posting of all of them had been made on the same
day - An officer cannot be granted seniority prior to his birth in
the cadre adversely affecting the seniority of the others who
have been appointed prior to him - In the instant case,
promotions had been made by two different DPCs held on J
19.12.1998 and 22. 1.1999 - Both the DPCs had made '
'
G promotions under different rules on different criteria and their
promotions had been made with retrospective effect with
,_
different dates notionally- Promotions of the employees made .. "
under the merit criteria having not Deen challenged, the

H 1OHJ
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS. 1011

seniority which is consequential to the promotions could not A
" ~ be challenged without challenging the promotions, as
"'
challenging the consequential order without challeng;ng the
basic order is not permissible - In the absence of challenge to
the promotion, relief of quashing the consequential seniority
list could not have been granted - Order of High Court quashing
B
the seniority list set aside- U.P. Government Servant Seniority
Rules, 1991 - r.6 - U.P. Assistant Excise Commissioners
-· .).
Service Rules, 1972 - r.3(1) .
Interim Orders:
Appeal before Supreme Court challenging order of High c
Court- Interim stay granted by Supreme Goud subject to final
decision in appeal - Appeal dismissed but consequential
steps to revert the writ petitioners not taken by department -
Writ petitioners claiming seniority on the basis of their service
rendered on the promotional post because of the interim order
granted by Court- Held: No litigant can derive any benefit from D
.,. mere pendency of case in the court of law, as the interim order
always merges in the final order to be passed in the case and
if the writ petition is ultimately dismissed, the interim order
stands nullified automatically - The maxim 'actus curiae
neminem gravabit', which means that the act of court shall E
prejudice no one, becomes applicable in the instant case - In
such a fact situation, the Court is under an obligation to undo
the wrong done to a party by an act of court - The factor
attracting applicability of restitution is not the act of the court
being wrongful or a mistake or error committed by the court;
the test is whether on account of an act of the party persuading F
the court to pass an order held at the end as not sustainable,
has resulted in one party gaining an advantage it would not
have otherwjse earned, or the other party has suffered an
impoverishment which it would not have suffered but for the
order of the court and the act of such party- There is nothing G
wrong in the parties demanding being placed in the same
-!lo

J
position in which they would have been had the court not
intervened by its interim order when at the end of the
proceedings the court pronounces its judicial verdict which
does not match with and countenance its own interim verdict - H
1012 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A The employees who were promoted on the basis of merit criteria
are entitled for the relief purely on the equitable grounds
Seniority list quashed by the High Court restored - Restitution
- Equity.
Maxim: ,
t"
B· · 'Actus curiae neminem gravabit' - Applicability of.
Chithranja Menon & Ors. Vs. A. Balakrishnan & Ors. AIR I

. 1.917 SC 1720; .State of U.P. & Ors. Vs. Onkar Nath Tandon & ~
Ors. AIR 1993 SC 11·73; Dr. S.P. Kapoor vs. State of Himachal
.. )

Pradesh AIR f981 SC 2181; Roshan Lal & Ors. Vs. .
I

c International Airport Authority of India & Ors. Al~ 1981SC597;
H. V. Pardasani etc. vs. Union of India & Ors. AIR 1985 SC 781
and Govt. of Maharashtra & Ors. Vs. Deokar's Distillery (2003)
5 sec 669, relied on.
J
;
Shiv Shankar & Ors. Vs. Board of Directors, Uttar Pradesh
D State Road Transport Corporation & Anr. 1-995 Suppl. (2) SCC
726; Mis GTC lndustries:Ltd. vs. Union of India & Ors. AIR 1998 "'-
SC 1566; Jaipur Municipal Corporation vs. C.L. Mishra (2005)
8 SCC 423; Ram -"Krishna Verma & Ors. Vs. State of U.P. &
Ors. AIR 1992 SC ·1888.; Grindlays Bank Ltd. vs. Income Tax
Officer, Calcutta & Ors. AIR 1980 SC 656; Mahadeo Savlaram
E
Sheke & Ors. Vs. Pune Municipal Corporation & Anr. (1995) 3
SCC 33; South Eastern Coalfields Ltd. vs. State of M.P. & Ors. ~

AIR 2003 SC 4482; Karnataka Rare Earth & Anr. Vs. Senior I
Geologist, Deptt. Of Mines & Geology &Anr. (2004) 2 SCC 783;
Dr. A.R. Sircar vs.
State of U.P. & Ors. (1993) Suppl. 2 SCC <,
F 734 and Committee of Man.agement, Arya Nagar Inter College
& Anr. Vs. Sree Kumar Tiwari &Anr. AIR 1997 SC 3071, relied
on. .
~

Case Law Reference :
AIR 1993 SC 1173 relied on Para 12
G 1995 suppl. (2) sec 726 relied on Para 15
AIR 1998 SC 1566 relied on Para 15 'l""

(2005) s sec 423 relied on Para 15 L

AIR 1992 SC 1888 relied on Para 16
AIR 1980 SC 656 relied on Para 16
H
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS. 1013

, -4 (1995) 3 sec 33 relied on Para 17 A
AIR 2003 SC 4482 relied on Para 18
(2004) 2 sec 783 relied on Para 18
(1993) Suppl. 2 SCC 734 relied on Para 19
AIR 1997 SC 3071 relied on Para 20
AIR 1981 SC 2181 relied on Para 23 B
AIR 1977 SC 1720 relied on Para 25
_.. AIR 1981 SC 597 relied on Para 26
AIR 1985 SC 781 relied on Para 27
(2003) s sec sss relied on Para 28
CIVIL APPELLATE JURISDICTION : Ciyil Appeal No.
c
5790-5792 of 2002. ~

From the Judgment and Order dated 11.04.2002 of the
High Court of Judicature at Allahabad, Lucknow in W.P. Nos.
1192 (SB), 1611 (SB) and 1881 (SB) of 2000.
D
,, WITH
SLP (Civil) No. 9615 of 2002.
Rakesh Dwivedi, Dinesh Dwivedi, Gaurav Aggarwal, (A.C.),
Vishwajit Singh,Siddharth Sengar,Rahul Dua, Ankit Dalela,
Manish Shankar, Abhishek Kr. Singh, Ravi Prakash Mehrotra,
Mukesh Verma, and Ashok K. Srivastava, for the appearing E
parties.
The following Order of the Court was delivered
ORDER
1. These appeals have arisen from the judgment and order
dated 11.4.2002 passed by the High Court of Allahabad F
(Lucknow Bench) by which it has allowed the writ petitions filed
by the respondents quashing the seniority list dated 12.7.2000
issued by the State Government for the Excise Inspectors.
2. The fads and circumstances giving rise to these appeals
are that the appellants and respondents in these cases were G
appointed as Excise Inspectors under the provisions of U.P.
J Excise Service (Class-I I) Rules, 1970 (hereinafter called as "the.
Rules 1970"). The parties became eligible for consideration for
promotion to the post of Superintendent of Excise under the said
Rules, 1970. The criteria of promotion for the post of H
1014 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Superintendent of Excise and for higher post of Assistant Excise
Commissioner (hereinafter called "AEC") had been "merif' under
-,.. '
the provisions of U.P. Assistant Excise Commissioners Service
Rules, 1992 (hereinafter called as 'the Rules 1992'). The said
rules stood amended w.e.f. 10.10.1994 and the criteria for
promotion was changed from 'merit' to 'seniority subject to
B ..,.._
rejection of unfit. "The Appellant Amarjeet Singh alongwith some
other Excise Inspectors filed writ petition No. 1113(88) of 1994
before the Allahabad High Court challenging the selection
process for promotion under Rules 1992. The High Court vide
judgment and order dated 1.2 .1995 held that the vacancies which
. _

c had come into existence prior to 10.10.1994 i.e. the date of
amendment, be filled upas per the unamended Rules i.e. on the
basis of "merit".and not on the basis of "seniority subject to
rejection of unfit."
3. Being aggrieved, the State of U.P. preferred the Special
D Leave Petition before this Court and this Court vide Order dated
30. 10.1995 passed an interim Order permitting the State
Authorities to make promotions as per 1994 amendment Rules I

but it was subject to the result of the petition as this Court made "'
it clear that if petition was dismissed, the respondents would be
reverted to the lower post from which they would be promoted.
E
4. In view of the said interim order of this Court, 61 ExcisP.
Inspectors stood promoted, subject to the final outcome of the
Special Leave Petition. This Court dismissed the said Special
Leave Petition vi de Order dated 19 .8 .1999 in Iimine. However,
the State Authorities for the reasons best known to them, did not
F revert the promoted officers and they continued to hold the higher
posts. The Departmental Promotional Committee (hereinafter ,
called the DPC) meant for filling up the 42 vacancies, which Game
into existance prior to 10.10.1994, met on 19.12.18°3. After
scanning the service records and determining the mter se merit
G of the candidates, the Committee came to the conclusion that
only 30 candidates were suitable for promotion to the posts of
AEC and they were to be promoted as per the availability of
yearwise vacancies. The respondents, herein, were found
l..
unsuitable for promotion in the said selection process.
5. Attar completing the aforesaid exercise, 12 vacancies
H
,__
AMARJEET SINGH & ORS_. .-.V. DEVI RATAN &, ORS. to tS-
...
'
for the post of AEC remained unfilled. Therefore, the 12 A
vacancies were carried forward to enable the State Authorities
to fill up the same under the amended Rules on a different criteria
i.e. "Seniority subject to rejection of unfit". Thus twelve officers/
responde.nts were promoted under the amended rules by the
another DPC held on 22.1.1999. The State Government issued
8
the Order dated 15.5.1999 reverting all Excise Inspectors
. (
promoted on 6.12.1995 under the interim order of this Court and
gave notional promotions with retrospective effect to appellants
as well as all the reverted officers/respondents. As a
consequence, a seniority list dated 12. 7.2000, was issued,
wherein the appellants were placed over and above the C
respondents. Being aggrieved, the respondents approached the
High Court challenging the said seniority list dated 12.7.2000.
6. The High Court vide impugned judgment and order dated
11.4.2002 held that as the postings to both set of officers i.e.
those who had been promoted by the DPC dated 19.12.1998 o
and another DPC dated 22.1.1999 had been made on the same
day and had been given notional promotion from one and the
same date, their inter se seniority was to be fixed as it existed
in the feeding cadre of Excise Inspectors and thus quashed the
seniority list dated 12. 7.2000 and further directed the State to
prepare .a fresh seniority list placing the appellants below the E
respondents. Hence these appeals.
7 ..In these appeals, as most of the appellants and
respondents have already availed the benefit of promotions and
retired on attaining the age of superannuation, they lost interest
in the litigation. Only two appellants and two to four respondents F
· are still in service and the said appellants feel that they would
be adversely affected, if the High Court judgment is given effect
to. In these matters, the learned counsel appearing for the
respondents sought discharge from the cases, as their clients
did not respond. In spite of the service of notices to them, they G
did not engage any counsel. Therefore, this Court on 26.8.2009
requested Shri Gaurav Agrawal, learned Advocate to assist the
court as Amicus Curiae who was served with the paper book of
the cases and appeared today for the respondents.
8. Shri Rakesh Dwivedi, learned senior counsel appearing
H
.• -

1016 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
I'-
'

A for the appellants has submitted that the action of the State
\,
Authorities has been in flagrant violation of the orders passed
by this Court as promotion of the respondents to the post of AEC ,....
had been subject to the decision of the Special Leave Petition,
which stood dismissed. The said respondents ought to have
beelJ reverted forthwith after dismi$sal of the said petition. The
B question of permitting them to continue even after dismissal of
'\
the petition by this Court was not required and thus, could not
be justified. Promotions made by the DPC under the unamended
.>--
Rules on the basis of "merit" could not be equated to the
promotions made by another DPC under the amended Rules on
c the basis of "Seniority subject to rejection of unfit" held at a later
)
stage. The High Court erred in considering both the p'romotions \
to have been made notionally from one and the same date. In
such a fact situation, the question of interpreting the statutory
rules was an unwarranted exercise. The appellants had been
promoted retrospectively, given notional promotion from the date /
D
much earlier than the respondents. Therefore, direction to fix the
seniority in view of their inter se seniority as it existed in the "
feeding cadre was not permissible. The appeals deserve to be
allowed and the impugned judgment and order is liable to be set
aside alongwith consequential seniority list dated 26. 7.2002. The
E seniority list dated 12.7.2000 has to be upheld and remain intact.
9. On the other hand, Shri Ravi Prakash Mehrotra and Shri
Gaurav Agrawal, learned counsel appearing for the respondents
vehemently opposed the appeals and made full efforts to defend
the judgment and order of the High Court and subsequent
F seniority list dated 26. 7.2002 contending that in· case the posting
orders have been issued on the same date, inter se seniority of
the parties on the post of Excise Inspectors has to be given effect
to. Therefore, the appeals are liable to the dismisser!.
10. We have considered the rival s1_1bmissions made by
G learned counsel for the parties and perussd the records.
Indisputably, the High Court has decided the case interpreting
the provisions of Rule 6 of the U.P. Government Servants
t
Seniority Rules, 1991 (hereinafter called as 'the Rules, 1991).
11. The High Court has considered the Rules elaborately
giving effect to the said Rule 6 of the Rules,~ 991 and its proviso
H
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS.1017

without examining its validity which had been under challenge A
before it in the connected writ petition. The High Court observed
that there was no occasion for the petitioners therein to challenge
the validity of Rule 6, as their seniority had already been fixed.
Rule 3( 1) of the Rules 1992, the recruitment year is defined
as under:
B
"Year of recruitment means a period of twelve months
commencing from the 1st day of July of calendar year"
Therefore, we have to keep in mind that the year of
recruitment is to be considered for the purpose of fixing inter se
seniority of the officers taking into consideration the officers C
promoted within a period of 12 months from 1st day of July of the
year. Therefore, if the promotions have retrospectively been
given to a particular set of officers in the year1995 and to another
set of officers in the years 1997 and 1998, they cannot be treated
at par and cannot be treated as equals merely because posting
of all of them had been made on the same day. The High Court D
committed an error in recording the finding of fact that notional
promotion had been given to both set of officers from one and
- the same date by virtue of notification no. 1098 dated 15.5.1999
and therefore their seniority is to be determined in accordance
with the Rule 6 of the Rules 1991 irrespective of the explanation. _E
12. As the High Court has misdirected itself considering that
both set of officers had been given notiona~ promotion from one
and the same date, which, in fact, is not factually correct, the
interpretation of the Statutory Rules or its explanation becomes
irrelevant.
F
This Court, in State of U.P. & Others vs. Onkar Nath
Tandon & Others, AIR 1993 SC 1173 has held that a candidate
who is rejected in a common selection and superseded, he would
not regain seniority upon being promoted subsequentiy. The High
Court wrongly distinguished the said judgment under the
presumption that both set of officers had been given notional G
promotions from one and the same date.
13. The High Court has decided the earlier writ petition
observing that vacancies which occurred prior to the date of
amendment of the Rules, i.e., 13.10.1994, had to be filled up as
per the unamended Rules. The State Government filed a Special H
.·

1018 $UPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
"
f··"·
.

A Leav~ Petiti.on, chal},~nglng the said order. This Court on
30.10.1995 passE1c:t~tne following order : /
"Durifl(the pendency of the Special Leave Petition·
appoil)tments may· be made as per the existing Rules, but
all the appointees·will be informed that appointments are
subjeq~·of the result of the petition and if trte court rules that
8
the revi,sed rule has no application insofar on the
respondents claimants are concerned, they will be liable to
be reverted to the present post from which they~ould be
promoted." ~; ...
In view of the above, the respondents had been promoted
C and allowed to continue. This Court, ultimately dismissed1he
said petition vide Order dated 19.8.1998 by the followirig ~der
'l!'

"We have heard Shri AB. Rohtagi, the learned SeA19i·i
Counsel appearing for the petitioners in support of the ·
D special leave petition and Shri G.L. Sanghi, the learned
Senior Counsel appearing for respondent no. 5 and Shri
Parag P. Tripathi, the learned counsel appearing for
respondent nos. 1 to 4 and 6 and we have perused the
impugned judgment of the High Court as well as the record.
E Having regard to the facts of this case, we do not think that
a case is made out for interference by this court under Article
136 of the Con~titution of India. The Special Leave Petition
is, therefore, dismissed."
14. In view of the above, the State Government oughtto have
F reverted the respondents as their promotions were subject to the
decisions of the said petition. In view of the fact that the
respondents continued on a higher post under the orders of this
Court for years together and even after dismissal of the petition
filed by the State, and the exercise for making promotions was
not undertaken by the State Authorities, the appellants should •
G not suffer for no fault of theirs. It has fairly been conceded by
learned counsel appearing for the respondents that had the
exercise of making promotions been undertaken immediately
after the order of this Court dated 19.8.1998, the appellants could.
have been promoted much earlier and they could have been
H senior to the respondents. Thus the question does arise as to
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS. 1019

whether appellants should be asked to suffer for the interim order A
.... ....
passed by this Court in a case having no merits at all.
15. No litigant can derive any benefit from mere pendency
of case in a Court of Law, as the interim order always merges in
the final order to be passed in the case and if the writ petition is
• ultimately dismissed, the interim order stands nullified
B
automatically. A party cannot be allowed to take any benefit of
his own wrongs by getting interim order and thereafter blame the
-4
Court. The fact that the writ is found, ultimately, devoid of any
merit, shows that a frivolous writ petition had been filed. The
maxim "Actus Curiae neminem gravabif', which means that the
act of the Court shall prejudice no-one, becomes applicable in c
such a case. In such a fact situation the Court is under an
obligation to undo the wrong done to a party by the act of the
Court. Thus, any undeserved or unfair advantage gained by a
party invoking the jurisdiction of the Court must be neutralised,
as institution of litigation cannot be permitted to confer any D
_,,, advantage on a suitor from delayed action by the act of the Court.
(Vide Shiv Shankar & Ors. Vs. Board of Directors, Uttar
Pradesh State Road Transport Corporation & Anr., 1995 Suppl.
(2) SCC 726; Mis. GTC Industries Ltd. Vs. Union of India & Ors.,
AIR 1998 SC 1566; and Jaipur Municipal Corporation Vs. C.L.
Mishra, (2005) 8 sec 423). E
16. In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors.,
AIR 1992 SC 18~8 this Court examined the similar issue while
placing reliance upon its earlier judgment in Grindlays Bank
Limited Vs. Income Tax Officer, Calcutta & Ors., AIR 1980 SC
656 and held that no person can suffer from the act of the Court F
and in case an interim order has been passed and petitioner
takes advantage thereof and ultimately the petition is found to
be without any merit and is dismissed, the interest of justice
requires that any undeserved or unfair advantage gained by a
party invoking the jurisdiction of the Court must be neutralized.
G
17. In Mahadeo Savlaram Sheke & Ors. Vs. Pune
~
Municipal Corporation & Anr., (1995) 3 SCC 33, this Court
observed that while granting the interim relief, the Court in
exercise of its discretionary power should also adopt the
procedure of calling upon the plaintiff to file a bond to the
H
1020 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A satisfaction of the Court that in the event of his failing in the suit
to obtain the relief asked for in the plaint, he would adequately ).,
,...
compensate the defendant for the loss ensued due to the order
of injunction granted in favour of the plaintiff. Even otherwise the
Court while exercising its equity jurisdiction in granting injunction
is also competent to grant adequate compensation to mitigate
B
the damages caused to the defendant by grant of injunction. The
pecuniary award of damages is consequential to the adjudication
of the dispute and the result therein is incidental to the
determination of the case by the Court. The Court can do so in
exercise of its inherent jurisdiction in doing ex debito justitiae
c mitigating the damage suffered by the defendant by the act of
the Court in granting injunction restraining the defendant from
proceeding with the action complained of in the suit. Such a
procedure is necessary as a check on abuse of the process of
the Court and adequately compensate the damages or injury
D suffered by the defendant by act of the Court at the behest of the
plaintiff.
18. In South Eastern Coalfields Ltd. Vs. State of M.P. & :.._

Ors.; AIR 2003 SC 4482, this Court examined this issue in detail
and held that no one shall suffer by an act of the Court. The factor
attracting applicability of restitution is not the act of the court
E being wrongful or a mistake or error committed by the court; the
test is whether on account of an act of the party persuading the
court to pass an order held at the end as not sustainable, has
resulted in one party gaining an advantage it would not have
otherwise earned, or the other party has suffered an
F impoverishment which it would not have suffered but for the order
of the court and the act of such party. There is nothing wrong in
the parties demanding being placed in the same position in
which they would have-been had the court not intervened by its
interim order when at the end of the proceedings the court
pronounc~s its judicial verdict which does not match with and
G
countenance its own interim verdict. The injury, if any, caused by
the act of the court shall be undone and the gain which the party
would have earned unless it was interdicted by the order of the
court would be restored to or conferred on the party by suitably
commanding the party liable to do so. Any opinion to the contrary
H would lead to unjust if not disastrous consequences. The Court
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS.1021

further held : A
" ..... Litigation may turn into a fruitful industry. Though
litigation is not gambling yet there is an element of chance
in every litigation. Unscrupulous litigants may feel
encouraged to approach the courts, persuading the court
to pass interlocutory orders favourable to them by making B
out a prima facie case when the issues are earlier to be
heard and determined on merits and if the concept of
restitution is excluded from application to interim orders, then
the litigant would stand to gain by swallowing the benefits
yielding out of the interim order even though the battle has
been lost at the end. This cannot be countenanced. We are, C
therefore, of the opinion that the succ.essful party finally held
entitled to a relief assessable in terms of money at the end
of the litigation, is entitled to be compensated ...... "
Similarly in Karnataka Rare Earth & Anr. Vs. Senior
Geologist, Department of Mines & Geology & Anr., (2004) 2 D
SCC 783, a similar view has been reiterated by this Court
observing that the party who succeeds ultimately is to be placed
in the same position in which they would have been if the Court
would not have passed an interim order.
19. In Dr. A.R. Sircar Vs. State of U.P. & Ors., (1993) Supp. E
2 sec 734, the dispute arose regarding the seniority of direct
recruits and promotees on the post of Professor of Medicine in
a medical college. The appellant therein faced the selection
process for direct appointment along with the respondents who
had been working on the said post on ad hoc basis. The appellant
was duly selected, however, the private respondents could not F
succeed. The respondents filed the writ petition before the High
Court and precluded the appointment of appellant pursuant to
his selection, by obtaining the interim order and on the other
hand they got their.ad hoc promotion to the post regularized under
the rules. The appellant could succeed in obtaining the G
appointment only after dismissal of the writ petition against him
after several years of his selection. This Court held that in addition
to the relief under the statutory provisions the appellant was
entitled in equity to get the seniority over the respondents as they
succeed in precluding his appoir:itment to the post by obtaining H
1022 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A an interim order in a case having no merits whatsoever.
_20. In Committee of Management, Arya Nagar Inter
College & Anr. Vs. Sree Kumar Tiwari & Anr., AIR 1997 SC
3071, the services of the respondent therein were terminated,
however, he continued to be in service on the basis of interim
B order passed by the High Court in the writ petition filed by him.
During the pendency of the writ petition, the rules for
regularization of ad hoc appointees were amended and in
pursuance thereof his services also stood regularized.
Ultimately, the writ petition filed by the respondent was
dismissed. This Court held that his continuity in service and
C regularizatior:i had to be J.mderstood as it was subject to the result
of the writ petition. As the writ petition was dismissed the order
of regularising of his services, passed during the pendency of
the writ petition, became inoperative.
21. In view of the above, the appellants are entitled for the
D relief purely on equitable grounds without going into any other
legal.issue and appeals deserve to be allowed arid the seniority
list quashed by the High Court has to be restored.
22. There is another aspect of the matter. The appellants
and the respondents have been considered by the DPC held on
E 19 .12 .1998 to fill up 42 vacancies under the unamended rules.
However, at the cost of repetition, it may be pertinent to mention
here that only 30 candidates/appellants were found suitable by
the DPC held on 19.12.1998 and had been promoted, under the
unamended Rules on the criterion of "merit". The respondents
had been promoted under the amended rules by carrying forward
F 12 vacancies, by another DPC held subsequently on 22.1.1999
on different criterion, i.e., "Seniority subject to rejection being
unfit". Indisputably, these 12 officers/respondents were found
unsuitable for promotion under the unamended rules by the DPC
held on 19.12.1998. Subsequent thereto, both set of officers had
G been promoted notionally from the back dates. The appellants
had been given promotions as AEC against the vacancies for
the year 1994-95 while the respondents were given notional
promotions against the vacancies for the years 1996 and 1997.
The seniority list dated 12.7.2000 was prepared accordingly. As
H the appellants had been given notional promotion w.e.f.
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS. 1023

6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, A
! .. their inter se seniority had rightly been determined while issuing
... seniority list dated 12.7.2000. The law permits promotion with
retrospective effect only in exceptional circumstances when there
has been some legal impediment in making the promotions, like
an intervention by the Court.
B
23. An officer cannot be granted seniority prior to his birth
in the cadre adversely affecting the seniority of other officer who
had been appointed prior to him. "The late comers to the regular
~
stream cannot steal a march over the early arrivals in the regular
queue" (vi de Dr. S.P. Kapoor vs. State of Himachal Pradesh
AIR 1981SC2181; Shitala Prasad Shukla vs. State of U.P. & c
Ors., AIR 1986 SC 1859; and Uttaranchal Forest Rangers'
Assn. (Direct Recruit) & Ors. vs. State of UP. & Ors., (2006)
10 sec 346).
24. In the instant case, promotions had been made by two
different DPC's held on 19.12.1998 and 22.1.1999. Both the D
_,. DPC's had made promotions under different rules on different
criterion and their promotions had been made with retrospective
effect with different dates notionally. In the writ petition before the
High Court, the promotion of the appellants had not been under
challenge. The seniority which is consequential to the promotions
E
could not be challenged without challenging the promotions.
25. Challenging the consequential order without challenging
the basic order is not permissible. {vide Chithranja Menon &
Ors. Vs. A. Balakrishnan & ·ors., AIR 1977 SC 1720).
26. In Roshan Lal & ors. Vs. International Airport Authority
" " of India·& Ors., AIR 1981 SC 597, the petitions were primarily F
confined to the seniority list and this Court held that challenge to
appointment orders could not be entertained because of
inordinate delay and in absence of the same, validity of
~' consequential, seniority could not be examined. In such a case,
a party is under a legal obligation co challenge the basic order G
and if and only if the same is found to be wrong, consequential
orders may be examined.
27. In H. V. Pardasani etc. Vs. Union of India & ors., AIR
1985 SC 781, this Court observed that if "petitioners are not able
to establish that the determination of their seniority is wrong and H
1024 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A they have been prejudiced by such adverse determination, their
ultimate claim to promotion would, indeed, not succeed."
28. A similar view had been reiterated by this Court in
" '
'
Government of Maharashtra & ors. Vs. Oeokar's Distillery, ~
(2003) 5 sec 669.
B These appeals are squarely covered by the aforesaid
judgments. We are of the considered opinion that in absence of
challenge to the promotion of the appellants, relief of quashing
the consequential seniority list could not have been granted.
>.
29. Sum up:
Admittedly, the respondents were over and above the
c appellants in the seniority list of Excise lnspe9tors. The rules of
1992 were amended in the year 1994, changing the criterion for
promotion from "merit" to "seniority subject to rejection of unfit".
Forty two posts of AEC were to be filled up from the Excise
Inspectors, as no Excise Superintendent was available for being
D considered for promotion to the post of AEC. The State
Government wanted to fill up the said vacanciea by applying the _..._

amended rules. On being challenged by some of the appellants,
the High Court held that the vacancies which occurred prior to
the amendment of 1992 Rules, namely, 10.10.1994 had to be
E filled up according to the unamended rules. The operation of the
judgment and order of the High Court was stayed by this Court
making it crystal clear that promotions so made under the
amended rules would be subject to the decision in special leave
petition. Accordingly, 61 Officers/respondents were promoted.
Subsequently, this Court dismissed the SLP vide order dated
F 18.8.1998 in limine. The officers/ respondents so promoted . ....,
were not.reverted. The DPC was held on 19.12.1998 to fill up
said 42 vacancies, but only 30 candidates/appellants were
found eligible to be promoted to the post of AEC. The
respondents were found unsuitable. In order to give the said
G respondents a second chance, the State Government carried
forward the remaining 12 vacancies and directed to fill up the
same under the amended-Rules, and-for that purpose another
DPC was convened on 22.1.1999 and they were promoted on
the basis of different criterion. Promotions were made with
retrospective effect determining the yearwise vacancies.
H
AMARJEET SINGH & ORS. v. DEVI RATAN & ORS. 1025

Appellants had been given promotion notionally against the A
vacancies, occurred in the recruitment year 1995 while the
respondents were promoted notionally against the vacancies of
the recruitment years 1996 and 1997. Thus, the High Court
committed an error while recording the finding of fact that both
set of officers had been promoted notionally from one and the
8
same date. Admittedly, promotions were not made with effect
from one and the same date. Appellants and respondents were
promoted against the vacancies which had occurred in different
recruitment years under different Rules and on different criterion.
Thus, the respondents would rank below the appellants in
seniority. , C
Therefore, there could be no justification to hold that their
inter se seniority in the feeding cadre would be relevant for
determining the seniority of AECs. More so, had the interim order
not been passed by this Court, the appellants could have been
promoted under the unamended rules much earlier. Thus, they o
are entitled for equitable relief, as the effect of the interim order
of this Court was required to be neutralised. The appellants had
been promoted with ari earlier date, thus, are bound to be senior
than respondents who had been promoted with respect from a
later date. No employee can claim seniority prior to the date of
his birth in the cadre. E
30. In view of the above, appeals succeed and are allowed.
The impugned judgment and order dated 11.4.2002 is set aside.
The Seniority List dated 12.7.2000 is directed to prevail and
fresh Seniority List of 26. 7.2002 is hereby quashed. No orders
as to cost. F
Before parting with these cases, we would record our
appreciation to the services rendered by Shri Gaurav Agrawal,
Amicus Curiae.
SLP(C) No. 9615 of 2002 :
This petition could not be dismissed by the High Court at G
the threshold without examining the case on merit. However, no
order is required in th.is case in view of the order of this date
passed in the connected appeal nos.5790-5792/2002. It is
accordingly disposed of.
R.P. Appeal disposed of. H