AMIT SINGHversusRAVINDRA NATH PANDEY & ORS. ETC. ETC

584                       [2022]
               SUPREME COURT     8 S.C.R. 584
                              REPORTS                      [2022] 8 S.C.R.


A                                AMIT SINGH
                                        v.
              RAVINDRA NATH PANDEY & ORS. ETC. ETC.
                     (Civil Appeal Nos. 8324-8327 of 2022)
B                            NOVEMBER 11, 2022
               [B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
             Uttar Pradesh Revenue Consolidation Service Rules, 1992 –
      rr. 18 and 19– U.P. Government Servants Seniority Rules, 1991 –
      r.8(3) – Seniority of Assistant Consolidation officers (ACOs) – Writ
C
      petitioners who were promoted to the post of ACOs claimed their
      seniority above the direct recruits of the same recruitment year –
      Single Judge of the High Court directed the promotees of 1997 to
      be placed above the direct recruits of that year – Division Bench of
      the High Court upheld the findings of Single Judge but modified
D     the same to the extent that the State shall apply rotasystem to direct
      recruits and promotees appointed in one recruitment year – On
      appeal, held: Seniority between the promotes and the direct recruits
      will have to be determined in accordance with the 1992 Rules – R.5
      of the 1992 Rules provides that in regard to the posts of ACOs, 67%
      posts would be filled by direct recruitment and 33% posts by
E
      promotion –R.18 of the 1992 Rules mandates that, if in any year of
      recruitment, appointments are made both by direct recruitment and
      by promotion, a combined select list shall be prepared by taking the
      names of candidates from the relevant list, the first name in the list
      being of the person appointed by promotion i.e. cyclic order – A
F     “year of recruitment” has been defined to be a period of twelve
      months, commencing from the first day of July of the calendar year
      and as such, in the present case, the year of recruitment would be
      from 1st of July of 1997 to 30th of June 1998 –In the instant case,
      the direct recruits were appointed on 18 th August, 1997, whereas
      the promotees were appointed on 16th December, 1997, i.e. both
G
      were appointed in the selection/recruitment year 1997-98 – By virtue
      of R.19(2) of the 1992 Rules, where the appointment of both the
      direct recruits and of the promotees were to be made in the same
      year of recruitment, regular appointments should not have been
      made unless selections were made from both the sources and a
H     combined list was prepared in accordancewith Rule 18 of the 1992
                                       584
  AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                       585
                       ETC.

Rules – A combined seniority list made on 29th July, 2005 giving       A
undue benefits to the direct recruits over the promotes, is in
contravention of the provisions of Rules 18 and 19 of the 1992
Rules –Where appointments were to be made both by direct
recruitment and by promotion, a combined list was to be prepared
in accordance with Rule 18 of the1992 Rules – Hence, the seniority
                                                                       B
list dated 29th July 2005, which provided a higher seniority to the
direct recruits, is, not sustainable in law.
       Dismissing the appeals, the Court
       HELD: 1. On 25th March 1992, the 1992 Rules were
notified. The perusal of the 1992 Rules would reveal that they
havebeen made in supersession of all existing Rules and Orders         C
on the subject. Clause (m) of Rule 3 of the 1992 Rules defines
“Year of recruitment’ to mean, a period of twelve months
commencing from the first day of July of a calendaryear. Rule 5 of
the 1992 Rules provides that, insofar as posts of ACOs are
concerned, 67% posts would be filled by direct recruitment             D
through the Uttar Pradesh SubordinateServices Selection
Commission and 33% posts by promotion from amongst the
substantively appointed Consolidators and Rectangulators
through the Selection Committee. [Paras 15 and 16][593-G-H;
594-A]
                                                                       E
       2. Rule 18 of the 1992 Rules mandates that, if in any year of
recruitment, appointments are made both by direct recruitment
and by promotion, a combined select list shall be prepared by
taking the names of candidates from the relevant list, in such
manner that the prescribed percentage is maintained, the first
name in the list being of the person appointed by promotion.Sub-       F
rule (2) of Rule 19 of the 1992 Rules specificallyprovides that,
where in any year of recruitment, appointments are to be made
both by direct recruitment and by promotion, regular
appointments shall not be made unless selections are made from
both the sources and a combined list is prepared in accordance
                                                                       G
with Rule 18. Subrule(3) of Rule 19 of the 1992 Rules further
provides that, if more than one orders of appointments are issued
in respect of any one selection, a combined order shall also be
issued, mentioning therein the names of the persons in order of
seniority as determined in the selection or, as the case may be,
as it stood in the cadre from which they are promoted. It further      H
586            SUPREME COURT REPORTS                       [2022] 8 S.C.R.


A     provides that, if the appointments are made both by direct
      recruitment and by promotion, names shall be arranged in
      accordance with the cyclic order referred to in Rule 18. [Paras
      17 and 18][594-F-H; 595-A-B]
             3. The inter se seniority between thepromotees and the
B     direct recruits will have to be determined in accordance with the
      1992 Rules. The 1992 Rules fix the quota of 67% for direct
      recruits and 33% for promotees. A “year of recruitment” has
      been defined to be a period of twelve months, commencing from
      the first day of July of the calendar year and as such, in the present
      case, the year of recruitment would be from 1st of July of 1997 to
C     30th of June1998. [Para 23][597-C]
             4. Admittedly, the direct recruits were appointed on 18th
      August, 1997, whereas the promotees were appointed on 16th
      December, 1997, i.e. both were appointed in the selection/
      recruitment year 1997-98. In view of sub-rule (2) of Rule 19 of
D     the 1992 Rules, where the appointment of both the direct recruits
      and of the promotees were to be made in the same year of
      recruitment, regular appointments should not have been made
      unless selections were made from both the sources and a
      combined list was prepared in accordance with Rule 18 of the
      1992 Rules. In view of sub-rule (3) of Rule 19 of the 1992 Rules,
E
      since the appointments in the same selection/recruitment year
      were made both by direct recruitment and by promotion, the
      names were required to be arranged in accordance with the cyclic
      order referred to in Rule 18 of the 1992 Rules. In view of Rule
      18 of the 1992 Rules, a combined select list has to be prepared
F     by taking the names of candidates from the relevant list, as per
      the quota for the direct recruits. In other words, the first name in
      the list was required to be that of a promotee. [Para 24][597-D-
      F]
            5. A combined seniority list was initially prepared in
G     accordance with the said provisions of the 1992 Rules on 18th
      September 2003. However, it had been erroneously changed on
      29th July, 2005, thereby giving undue benefits to the direct
      recruits over the promotees. Such a list was in contravention of
      the provisions of Rules 18 and 19 of the 1992 Rules. When the
      1992 Rules specifically emphasized that, where in any year of
H     recruitment, appointments were to be made both by direct
  AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                          587
                       ETC.

recruitment and by promotion, regular appointments could not              A
have been made unless selections were made from both the
sources and a combined list was to be prepared in accordance
with Rule 18 of the 1992 Rules, the seniority list dated 29th July
2005, which provided a higher seniority to the direct recruits, is,
for the aforesaid reasons, not sustainable in law. [Para 25][597-
                                                                          B
G-H; 598-A-B]
      Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and
      others vs. State of U.P.and others (2006) 10 SCC 346 :
      [2006] 6 Suppl. SCR 609 – held inapplicable.
      PawanPratap Singh and others vs. Reevan Singh and                   C
      others (2011) 3 SCC 267 : [2011] 2 SCR 831; P.
      Sudhakar Rao and others vs. U. Govinda Rao and
      others (2013) 8 SCC 693 : [2013] 13 SCR 540 – relied
      on.
                       Case Law Reference                                 D
[2006] 6 Suppl. SCR 609         held inapplicable        Para 7
[2011] 2 SCR 831                relied on                Para 20
[2013] 13 SCR 540 .             relied on                Para 22
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.8324-               E
8327 of 2022.
       From the Judgment and Order dated 04.09.2014 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal
No.625 of 2008, Special Appeal No.631 of 2008, Special Appeal Defective
No.669 of 2008 and Special Appeal Defective No.186 of 2009.               F
      S. R. Singh, Sr. Adv., Sushant Kumar Yadav, Ajay Yadav, Prateek
Yadav, Gaurav Lomes, Rahul Ranjan, Shivam Tyagi, Advs. for the
Appellant.
      Pradeep Kant, Sr. Adv., Rakesh K. Sharma, Tanmaya Agarwal,
Wrick Chatterjee, Mrs. Aditi Agrawal, Gaurav Goel, Simranjeet Singh       G
Rekhi, Jayant Mohan, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      B. R. GAVAI, J.
      1. Leave granted.                                                   H
588               SUPREME COURT REPORTS                        [2022] 8 S.C.R.


A            2. The appeals challenge the judgment and order dated 4 th
      September 2014, passed by the Division Bench of the High Court of
      Judicature at Allahabad, Lucknow Bench, Lucknow, in Special Appeal
      No. 625 of 2008 and other connected Appeals, thereby, while upholding
      the order passed by the learned Single Judge, modifying it to the extent
      that the seniority list shall be prepared by applying the rota system to
B
      direct recruits and promotees appointed in one recruitment year.
               FACTUAL BACKGROUND
               3. The facts, in brief, giving rise to the present appeals are as
      under:
C            3.1 The writ petitioners, who were promoted to the post of Assistant
      Consolidation Officers (hereinafter referred to as “the ACOs”) against
      the recruitment year 1997-1998, approached the learned Single Judge of
      the High Court, claiming that their seniority was above the direct recruits
      of the same recruitment year. It was the contention of the writ petitioners
D     that the ACOs who were directly appointed were erroneously given
      seniority over the promotees. It was their contention that the seniority
      was required to be given in accordance with Rule 8(3) of the U.P.
      Government Servants Seniority Rules, 1991 (hereinafter referred to as
      “the 1991 Rules”) and their names had to be placed in a cyclic order, i.e.
      a promotee followed by a direct recruitee.
E
             3.2 The writ petitioners were initially appointed as Consolidators
      in the Consolidation Department in various districts. They were promoted
      to the post of ACOs on various dates in the year 1997. The respondents
      in the writ petitions, i.e. direct recruits were directly appointed to the
      post of ACOs, on the basis of the recommendation of the Uttar Pradesh
F     Subordinate Services Selection Commission and as per the recruitment
      process under the Uttar Pradesh Revenue Consolidation Service Rules,
      1992 (hereinafter referred to as “the 1992 Rules”). The direct recruits
      were appointed on 18th August 1997. As such, both the promotees as
      well as the direct recruits came in the cadre of the ACOs in the
G     recruitment year of 1997-1998, i.e. between 1st July 1997 and 30th June
      1998.
             3.3 The claim of the writ petitioners was resisted by the State as
      well as by the direct recruits. It was contended on behalf of the State as
      well as the direct recruits that the seniority has to be assigned on the
      basis of the year of vacancy. It was submitted that, in the case of direct
H
   AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                              589
                  ETC. [B. R. GAVAI, J.]

recruits, though for an earlier year there existed vacancy for them, they      A
were appointed subsequently and as such, they were given seniority in
the quota available in the earlier years.
        3.4 The learned Single Judge of the High Court came to the
conclusion that the direct recruits were appointed on 18th August 1997,
whereas the writ petitioners were promoted on 16th December 1997.              B
The learned Single Judge found that both the promotees as well as the
direct recruits became members of the cadre of ACOs in the same
recruitment year, i.e. 1997-1998, and, therefore, in accordance with Rule
8 of the 1991 Rules, they had to be placed in the seniority list in a cyclic
order. It was found that the said exercise was carried out in the year
2003; however, the same had been abruptly changed through the seniority        C
list dated 29th July 2005, impugned before the High Court. The learned
Single Judge found that in the recruitment year 1997-1998, there were
requisite number of posts available for promotees and as such, the action
of the State in denying the seniority to the promotees was not sustainable.
The learned Single Judge, therefore, allowed the writ petitions and quashed    D
and set aside the impugned seniority list dated 29th July 2005. The learned
Single Judge further directed that the promotees of 1997 to be placed
above the direct recruits of that year.
       3.5 Being aggrieved thereby, the direct recruits preferred appeals
before the Division Bench of the High Court of Judicature at Allahabad,        E
Lucknow Bench, Lucknow. The learned Judges of the Division Bench
of the High Court, vide the impugned judgment and order dated 4th
September 2014, upheld the findings of the learned Single Judge of the
High Court, but modified the same to the extent that the State shall apply
rota system to direct recruits and promotees appointed in one recruitment
year.                                                                          F

      3.6 Being aggrieved thereby, the appellant-direct recruit has
approached this Court.
      SUBMISSIONS
      4. We have heard Mr. S.R. Singh, learned Senior Counsel                  G
appearing on behalf of the appellant and Mr. Pradeep Kant, learned
Senior Counsel, Mr. Rakesh K. Sharma, and Mr. Tanmaya Agarwal,
learned counsel appearing on behalf of the respondents.
       5. Mr. S.R. Singh, learned Senior Counsel, submitted that the direct
recruits were appointed as ACOs on 18th August 1997, whereas the               H
590               SUPREME COURT REPORTS                        [2022] 8 S.C.R.


A     promotees came to be promoted vide order dated 16th December 1997.
      It is, therefore, submitted that the promotees had not even entered the
      cadre of ACOs when the appellant was appointed. It is submitted that,
      since the appellant was appointed much prior to the date on which the
      promotees were promoted, the 2005 seniority list rightly placed the direct
      recruits (including the appellant herein) above the promotees. It is
B
      submitted that the learned Single Judge as well as the Division Bench of
      the High Court have grossly erred in setting aside the said seniority list.
              6. Mr. Singh further submitted that the 1991 Rules had an
      overriding effect, and in view of Rule 8 of the 1991 Rules, the seniority
      of persons appointed has to be determined only from the date of the
C     order of their substantive appointments. It is submitted that the 1991
      Rules will have no application to the facts of the present case. It is
      submitted that the finding of the learned Judges of the Division Bench
      that, if the selection is made in one recruitment/selection year the rota
      rules will apply, is without any basis.
D             7. Mr. Singh further submitted that if the judgments of the learned
      Single Judge and the Division Bench of the High Court are upheld, it
      would amount to permitting the promotees to get seniority retrospectively,
      which is not permissible in view of the law as laid down by this Court in
      the case of Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and
      others vs. State of U.P. and others1.
E
              8. Mr. Pradeep Kant, learned Senior Counsel, on the contrary,
      submits that the learned Single Judge as well as the Division Bench of
      the High Court have rightly held that since both the promotees as well as
      the direct recruits have entered the cadre of ACOs in the same
      recruitment/selection year, i.e. 1997-98, no interference would be
F     warranted with the impugned order.
              CONSIDERATION
              9. For considering the rival submissions of the parties, it will be
      apposite to refer to the relevant Rules.
              10. Rule 8 of the 1991 Rules reads thus:
G
              “8. Seniority where appointments by promotion and direct
              recruitment.-
              (1) Where according to the service rules appointments are made
              both by promotion and by direct recruitment, the seniority of
      1
          (2006) 10 SCC 346
H
AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                            591
               ETC. [B. R. GAVAI, J.]

  persons appointed shall, subject to the provisions of the following     A
  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       B
  back date, with effect from which a person is substantively
  appointed, that date will be deemed to be the date of order of
  substantive appointment and, in other cases, it will mean the date
  of issuance of the order:
      Provided further that a candidate recruited directly may lose       C
  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,—                                                         D
  (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         E
        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
  promotees vis-a-vis direct recruits shall be determined in a cyclic     F
  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 promotees and direct recruits
  is in the proportion of 1 : 1 the seniority shall be in the following
  order :                                                                 G
  First ...... Promotee
  Second ...... Direct Recruits
  and so on
                                                                          H
592                SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A           (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
B
            Sixth of eight ..... Direct recruits
            and so on
            Provided that:
            (i)      where appointment from any source are made in excess of
C                    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 appointment from any source fall short of the
D                    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
E
                     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 source and appointment in excess of quota are so
F                    made, the persons so appointed shall get the seniority of
                     that very year as if they are appointed against the vacancies
                     of their quota.”
              11. The perusal of sub-rule (1) of Rule 8 of the 1991 Rules would
      reveal that, where according to the service rules appointments are made
G     both by promotion and by direct recruitment, the seniority of persons
      appointed shall, subject to the provisions of the said sub-rules, be
      determined from the date of the order of their substantive appointments.
      It further provides that, if two or more persons are appointed together,
      then, it shall be in the order in which their names are arranged in the
      appointment order.
H
   AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                                593
                  ETC. [B. R. GAVAI, J.]

        12. Sub-rule (3) of Rule 8 of the 1991 Rules would be most               A
important. It provides that, where appointments are made both by
promotion and by direct recruitment on the result of any one selection,
the seniority of promotees vis-à-vis direct recruits shall be determined in
a cyclic order, i.e. the first being a promotee, so far as may be, in
accordance with the quota prescribed for the two sources.
                                                                                 B
        13. The illustration given is clear that, where the quota of
promotees and direct recruits is in the proportion of 1:1, the first post will
go to a promotee; and the second post will go to a direct recruit and so
on, and where the quota is in the proportion of 1:3, then the first post will
go to a promotee, and second to fourth posts will go to direct recruits,
the fifth post will go to a promotee and sixth to eighth posts will go to        C
direct recruits, and so on. The proviso thereto clarifies that, where
appointments from any source are made in excess of the prescribed
quota, the persons appointed in excess of the quota shall be pushed
down, for the purposes of seniority, to a subsequent year or years in
which there are vacancies in accordance with the quota. Similarly, it
provides that, where appointments from any source fall short of the              D
prescribed quota and appointment against such unfilled vacancies are
made in a 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           E
other appointees. It further provides that, 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 source and appointments 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.                              F
        14. It will also be relevant to note that, in the 1991 Rules, the term
recruitment/selection year is not defined.
        15. On 25th March 1992, the 1992 Rules were notified. The perusal
of the 1992 Rules would reveal that they have been made in supersession
of all existing Rules and Orders on the subject. Clause (m) of Rule 3 of         G
the 1992 Rules defines “Year of recruitment’ to mean, a period of twelve
months commencing from the first day of July of a calendar year.
        16. Rule 5 of the 1992 Rules provides that, insofar as posts of
ACOs are concerned, 67% posts would be filled by direct recruitment
through the Uttar Pradesh Subordinate Services Selection Commission              H
594            SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A     and 33% posts by promotion from amongst the substantively appointed
      Consolidators and Rectangulators through the Selection Committee. Rules
      18 and 19 of the 1992 Rules would be vital, which read thus:
            “18. Combined select list.- If in any year of recruitment
            appointments are made both by direct recruitment and by
B           promotion, a combined select list shall be prepared by taking the
            names of candidates from the relevant list, in such manner that
            the prescribed percentage is maintained, the first name in the list
            being of the person appointed by promotion.
            Part VI- Appointment, Probation, Confirmation and Seniority
C           19. Appointments.- (1) Subject to the provisions of sub-rule (2)
            the appointing authority shall make appointment by taking the
            names of candidates in order in which they stand in the list prepared
            under Rule 15, 16 or 17, as the case may be.
            (2) Where in any year of recruitment, appointments are to be
D           made both by direct recruitment and by promotion, regular
            appointments shall not be made unless selections are made from
            both the sources and a combined list is prepared in accordance
            with Rule 18.
            (3) If more than one orders of appointments are issued in respect
E           of anyone selection, a combined order shall also be issued,
            mentioning the names of the persons in order of seniority as
            determined in the selection or, as the case may be, as it stood in
            the cadre from which they are promoted. If the appointments are
            made both by direct recruitment and by promotion, names shall
            be arranged in accordance with the cyclic order referred to in
F
            Rule 18.”
             17. Rule 18 of the 1992 Rules mandates that, if in any year of
      recruitment, appointments are made both by direct recruitment and by
      promotion, a combined select list shall be prepared by taking the names
      of candidates from the relevant list, in such manner that the prescribed
G     percentage is maintained, the first name in the list being of the person
      appointed by promotion.
             18. Sub-rule (2) of Rule 19 of the 1992 Rules specifically provides
      that, where in any year of recruitment, appointments are to be made
      both by direct recruitment and by promotion, regular appointments shall
H
      AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                             595
                     ETC. [B. R. GAVAI, J.]

not be made unless selections are made from both the sources and a               A
combined list is prepared in accordance with Rule 18. Sub-rule (3) of
Rule 19 of the 1992 Rules further provides that, if more than one orders
of appointments are issued in respect of any one selection, a combined
order shall also be issued, mentioning therein the names of the persons
in order of seniority as determined in the selection or, as the case may
                                                                                 B
be, as it stood in the cadre from which they are promoted. It further
provides that, if the appointments are made both by direct recruitment
and by promotion, names shall be arranged in accordance with the cyclic
order referred to in Rule 18.
       19. The position is thus clear. The 1992 Rules, which are framed
in exercise of the powers conferred by the proviso to Article 309 of the         C
Constitution of India, are in supersession of all existing Rules and Orders
on the subject. Insofar as the contention of Mr. S.R. Singh, learned
Senior Counsel, on Rule 3 of the 1991 Rules is concerned, the said Rules
reads that, “these rules shall have effect notwithstanding anything
to the contrary contained in any other service rules made hereto                 D
before”. As such, the 1991 Rules will have effect only if there is anything
inconsistent therein with any of the provisions in the earlier service rules.
This submission is without merit inasmuch as the 1992 Rules specifically
state that they are in supersession of all existing rules and orders.
      20. This Court in the case of Pawan Pratap Singh and others                E
vs. Reevan Singh and others2 observed thus:
         “44. The Constitution Bench of this Court in Direct Recruit Class
         II Engg. Officers’ Assn. v. State of Maharashtra [(1990) 2 SCC
         715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] stated the legal
         position with regard to inter se seniority of direct recruits and       F
         promotees and while doing so, inter alia, it was stated that once
         an incumbent is appointed to a post according to rules, his seniority
         has to be counted from the date of his appointment and not
         according to the date of his confirmation.
         45. From the above, the legal position with regard to determination     G
         of seniority in service can be summarised as follows:
               (i) The effective date of selection has to be understood in
         the context of the service rules under which the appointment is
         made. It may mean the date on which the process of selection
2
    (2011) 3 SCC 267                                                             H
596             SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A           starts with the issuance of advertisement or the factum of
            preparation of the select list, as the case may be.
                   (ii) Inter se seniority in a particular service has to be
            determined as per the service rules. The date of entry in a particular
            service or the date of substantive appointment is the safest criterion
B           for fixing seniority inter se between one officer or the other or
            between one group of officers and the other recruited from
            different sources. Any departure therefrom in the statutory rules,
            executive instructions or otherwise must be consistent with the
            requirements of Articles 14 and 16 of the Constitution.
C                  (iii) Ordinarily, notional seniority may not be granted from
            the backdate and if it is done, it must be based on objective
            considerations and on a valid classification and must be traceable
            to the statutory rules.
                   (iv) The seniority cannot be reckoned from the date of
D           occurrence of the vacancy and cannot be given retrospectively
            unless it is so expressly provided by the relevant service rules. It
            is so because seniority cannot be given on retrospective basis
            when an employee has not even been borne in the cadre and by
            doing so it may adversely affect the employees who have been
            appointed validly in the meantime.”
E
             21. This Court in the said case held that the effective date of
      selection has to be understood in the context of the service rules under
      which the appointment is made. It may mean the date on which the
      process of selection starts with the issuance of advertisement or the
      factum of preparation of the select list, as the case may be. This Court
F     further held that the inter se seniority in a particular service has to be
      determined as per the service rules. It held that the date of entry in a
      particular service or the date of substantive appointment is the safest
      criterion for fixing seniority inter se between one officer or the other or
      between one group of officers and the other recruited from different
G     sources. It further held that any departure therefrom in the statutory
      rules, executive instructions or otherwise must be consistent with the
      requirements of Articles 14 and 16 of the Constitution of India. It further
      held that the seniority cannot be reckoned from the date of occurrence
      of the vacancy and cannot be given retrospectively unless it is so expressly
      provided by the relevant service rules. It held that the seniority cannot
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      AMIT SINGH v. RAVINDRA NATH PANDEY & ORS. ETC.                           597
                     ETC. [B. R. GAVAI, J.]

be given on retrospective basis when an employee has not even been             A
borne in the cadre and by doing so it may adversely affect the employees
who have been appointed validly in the meantime.
      22. A bench of three learned Judges of this Court in the case of P.
Sudhakar Rao and others vs. U. Govinda Rao and others 3 has
approved the law as laid down by this Court in the case of Pawan               B
Pratap Singh and others (supra).
      23. It is thus clear that the inter se seniority between the promotees
and the direct recruits will have to be determined in accordance with the
1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and
33% for promotees. A “year of recruitment” has been defined to be a            C
period of twelve months, commencing from the first day of July of the
calendar year and as such, in the present case, the year of recruitment
would be from 1st of July of 1997 to 30th of June 1998.
       24. Admittedly, the direct recruits were appointed on 18th August,
1997, whereas the promotees were appointed on 16th December, 1997,             D
i.e. both were appointed in the selection/recruitment year 1997-98. In
view of sub-rule (2) of Rule 19 of the 1992 Rules, where the appointment
of both the direct recruits and of the promotees were to be made in the
same year of recruitment, regular appointments should not have been
made unless selections were made from both the sources and a combined
list was prepared in accordance with Rule 18 of the 1992 Rules. In view        E
of sub-rule (3) of Rule 19 of the 1992 Rules, since the appointments in
the same selection/recruitment year were made both by direct recruitment
and by promotion, the names were required to be arranged in accordance
with the cyclic order referred to in Rule 18 of the 1992 Rules. In view of
Rule 18 of the 1992 Rules, a combined select list has to be prepared by        F
taking the names of candidates from the relevant list, as per the quota
for the direct recruits. In other words, the first name in the list was
required to be that of a promotee.
       25. A combined seniority list was initially prepared in accordance
with the said provisions of the 1992 Rules on 18th September 2003.             G
However, it had been erroneously changed on 29th July, 2005, thereby
giving undue benefits to the direct recruits over the promotees. Such a
list was in contravention of the provisions of Rules 18 and 19 of the 1992
Rules. When the 1992 Rules specifically emphasized that, where in any
3
    (2013) 8 SCC 693                                                           H
598              SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A     year of recruitment, appointments were to be made both by direct
      recruitment and by promotion, regular appointments could not have been
      made unless selections were made from both the sources and a combined
      list was to be prepared in accordance with Rule 18 of the 1992 Rules,
      the seniority list dated 29th July 2005, which provided a higher seniority
      to the direct recruits, is, for the aforesaid reasons, not sustainable in law.
B
             26. Insofar as the judgment of this Court in the case of Uttaranchal
      Forest Rangers’ Assn. (Direct Recruit) and others (supra) is
      concerned, the same would not be applicable to the facts of the present
      case. In the said case, the promotees, who were promoted in 1991,
      claimed seniority over the direct recruits who were substantively
C     appointed at a prior point of time in 1990. In any case, the 1992 Rules did
      not fall for consideration in the said case.
             27. As already discussed herein above, we are of the considered
      view that, in view of Rules 18 and 19 of the 1992 Rules, the seniority list
      dated 29th July 2005, impugned before the High Court, is not sustainable
D     in law.
            28. In the result, we find no merit in the present appeals. The
      appeals deserve to be dismissed and, as such, are dismissed.
             29. Pending applications, if any, shall stand disposed of. No costs.
E
      Ankit Gyan                                                    Appeals dismissed.
      (Assisted by : Shevali Monga, LCRA)




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