Supreme Court of India
PAWAN PRATAP SINGH & ORS.versusREEVAN SINGH & ORS.
- Citation
- 2011 INSC 117
- Decided
- 10 February 2011
- Disposal
- Appeal(s) allowed
- Bench
- AFTAB ALAM
Holding
The 1991 appointees are senior to the 1994 appointees; seniority is to be determined under Rule 8 of the 1991 Rules based on the date of substantive appointment.
Summary
The case concerned two groups of directly recruited Deputy Jailors in Uttar Pradesh – one appointed in 1991 through the Subordinate Services Selection Commission and another in 1994 through the Uttar Pradesh Public Service Commission. A seniority list issued in 1995 placed the 1991 appointees senior to the 1994 appointees, which the latter challenged. The Allahabad High Court held that the second proviso to Rule 5 of the Uttar Pradesh Government Servants Seniority Rules, 1991 made the 1994 appointees senior, interpreting seniority on the basis of the date of selection rather than appointment. The Supreme Court examined the applicability of Rules 5, 6, 7 and 8 of the 1991 Rules and held that because the 1980 Rules allowed recruitment both by direct recruitment and promotion, Rule 5 (which applies only where recruitment is solely by direct recruitment) was inapplicable, and Rule 8 governed the dispute. Applying Rule 8, seniority is to be fixed from the date of the substantive appointment, making the 1991 appointees senior to the 1994 appointees. Consequently, the High Court’s decision was set aside and the appeals were allowed.
Issues considered
- The applicability of Rule 5 of the Uttar Pradesh Government Servants Seniority Rules, 1991 to inter se seniority between the 1991 and 1994 Deputy Jailor appointees.
- Whether Rule 8 of the 1991 Rules, which deals with seniority where appointments are made by both promotion and direct recruitment, governs the present dispute.
- Whether seniority should be determined on the basis of the date of substantive appointment or the date of selection.
- Whether the second proviso to Rule 5, as interpreted by the High Court, correctly overrides the date of substantive appointment.
- Whether the 1991 Rules have overriding effect over the 1980 Jail Executive Subordinate Service Rules.
Legislation cited
- Uttar Pradesh Government Servants Seniority Rules, 1991s. Rule 2, s. Rule 3, s. Rule 5, s. Rule 8, s. Rule 9
- Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980s. Rule 22, s. Rule 5
- Uttar Pradesh Subordinate Services Selection (Commission) Act, 1988
Subjects
seniorityservice lawUttar PradeshDeputy Jailorselection vs appointmentRule 5Rule 8Uttar Pradesh Government Servants Seniority Rules 1991inter se seniorityArticle 309
Judgment
[2011] 2 S.C.R. 831
PAWAN PRATAP SINGH & ORS. A
v.
REEVAN SINGH & ORS.
(Civil Appeal No.9906 of 2003)
FEBRUARY 10, 2011
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Uttar Pradesh Government Servants Seniority Rules,
1991: rr.5, 8- Determination of seniority between two groups
of direct recruits to the posts of Deputy Jailor, one appointed
in 1991 through the selection made by Selection
Commission and the other in 1994 by UPPSC - Selection
· process for the appointments made in 1991 had commenced
in 1987 while selection process for the appointments made
in 1994 had commenced in 1990 - High Court holding that
1994 appointee would rank senior to the 1991 appointee,
observing that the candidates who were selected in the
selection process that commenced in 1987 should rank
senior to those selected in the selection process commencing
much later in 1990 - Correctness of - Held: Not correct -
1991 appointees cannot be made junior to 1994 appointees
-Per R.M. Lodha, J.: Rule 8 of the 1991 Rules would govern ~
the controversy and in view thereof for determination of inter
se seniority between the two groups (1991 and 1994
. _appointees by direct recruitment) date of the order of their
substantive appointment is relevant - Since the substantive
appointment of 1991 appointees was much /prior in point of
time, they would rank senior to the 1994 appointees - Per
Aftab Alam, J: The seniority dispute in instant case has to be
determined outside the 1991 Rules ~ Basic principles for
determination of seniority has to be applied - Seniority cannot
relate back to a period prior to the date of the incumbent's birth
in the service/cadre, and in facts of this case, the issue of
seniority between the 1991 appointee and the 1994 appointee
831
832 SUPREME COURT REPORTS (2011] 2 S.C.R.
A must be decided on that basis - By this way, the 1991
,appointee would rank senior to the 1994 appointee - Uttar
Pradesh Subordinate Service Selection (Commission) Act,
1988 - Service law - Seniority.
Service law: Seniority - Legal position with regard to
8
determination of seniority in service - Discussed.
For the period prior to November 25, 1989, the
statutory agency to make the selection for appointment
to the post of Deputy Jailer was the Uttar Pradesh Public
C Service Commission (UPPSC). On December 26, 1987,
the UPPSC issued an advertisement for filling up 144
vacancies for the post of Deputy Jailer. The main
examination was held in 1991 and the result was declared
on July 27, 1993. On the basis of the list received from
D the UPPSC, the State Government issued appointments
\letters to the selected candidates on April 26, 1994. The
private first respondent was one of them. The selection
process commenced by UPPSC took long time,
meanwhile the State Legislature enacted the Uttar
E Pradesh Subordinate Service Selection (Commission)
Act, 1988 to establish a Subordinate Service Selection
Commission for direct recruitment to all Group 'C' posts
in the State of U.P. On October 27, 1990, the Selection
Commission issued an advertisement for filling up of 60
F posts of Deputy Jailor. The examination was held and the
Selection Commission sent a select list to the State
Government in 1991 for issuance of appointment letters.
On November 23, 1991, the State Government issued
appointment letters to the selected candidates. The
G appellants were amongst those who were appointed
pursuant to the selection made by the Selection
Commission.
On August 29, 1995, a tentative seniority list of
Deputy Jailors was notified. In that list, the candidates
H
~---~·~ ............
PA~ "PRATAP SINGH & ORS. v. REEVAN SINGH 833
.t .
& ORS.
' ,.
appointed In 1991 were shown senior to the candidates A
appointed in 1994. The first respondent filed a writ
petition challenging the list. The. High Court on application
of the second proviso to rule 5 of Uttar Pradesh
Government Servants Seniority Rules, 1991 held that first
respondent would rank senior to the appellants, B
observing that the candidates who were selected In the
selection process that commenced in 1987 should rank
senior to those selected in the selection process
.. commencing much later in 1990. The High Court made
distinction between 'selection' and 'appointment' and . c
Weld that under the proviso to rule 5 what was
determinative was not appointment but selection and
therefore, the appellants were appointed earlier than first
respondent who was appointed later, nevertheless, they
would rank junior to him because they were appointed 0
on the result of subsequent selection~
The question which arose for consideration in these
appeals filed, one by the State of Uttar Pradesh and the
other tWo by the 1991 appointees related to determination
·of seniority between two groups of direct recruits to the E
.. J)~sts of Deputy Jallor (Group 'C' post), one appointed in
.3:9.91 through the · s~lection made by Selection
Commission and the other in 1994 by UPPSC.
Allowing the appeals, the Court F
. HELD:
PER R.M. LODHA, J.:
1. The recruitment to the posts of Deputy Jailor in the G
State of Uttar Pradesh is governed by the Uttar Pradesh
'.Jail Executive Subordinate (Non-Gazetted) Service Rules,
<.1980 which were framed by the Governor in exercise of
· the powers conferred by the proviso to Article 309 of the
.Constitution. The 1980 Rules provided for cadre of H
.834 SUPREME COURT REPORTS (2011] 2 S.C.R.
A service, procedure for recruitment to the post of Deputy
Jailor, reservation, academic qualifications, determination
of vacancies, appointment, probation, confirmation and
inter se seniority of persons appointed to the service.
However, by subsequent Rules, namely, Uttar Pradesh
B Government Servants Seniority Rules, 1991 which too
were made by the Governor under the proviso to Article
309 of the Constitution, comprehensive provisions were
made for the determination of seniority of all government
servants in the State of Uttar Pradesh. Rule 2 of the 1991
c Rules stated that these rules would apply to all
government servants in respect of whose recruitment
and conditions of service, rules may be or have been
made by the Governor under the proviso to Article 309
of the Constitution and rule 3 gives to the 1991 Rules
0 overriding effect notwithstanding anything to the
contrary contained in earlier service rules. [Para 18) [852-
C-G)
Jagdish Ch. Patnaik & Ors. v. State of Orissa & Ors.
(1998) 4 SCC 456; Ajit Kumar Rath.v. State of Orissa & Ors.
E (1999) 9 SCC 596; Uttaranchal Forest Rangers' Assn. (Direct
Recruit) & Ors. v. State of U.P. & Ors. (2006) 10 SCC 346
State of Uttaranchal & Anr. v. Dinesh Kumar Sharma (2007)
1 SCC 683; Chandra Kumar v. Union of India & Ors. (1997)
3 SCC 261; A.P. Public Service Commission, Hyderabad &
F Anr. v. B. Sarat Chandra & Ors. (1990) 2 SCC,669 State of
U.P. v. Rafiquddin & Ors. 1987 (Suppl.) SCC 401 Surendra
Narain Singh & Ors. v. State of Bihar & Ors. (1998) 5 SCC
246 Ba/want Singh Narwal & Ors. v. State of Haryana & Ors.
(2008) 7 sec 728 - referred to.
G
2. Insofar as 1991 Rules were concerned, the said
Rules provided for determination of seniority in relation
to different categories. Rule 5 made provision for
determination of seniority in cases where according to
service rules, appointments were made only by the direct
H
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 835
& ORS.
recruitment. 1980 Rules were the relevant service rules A
· for appointment to the posts of Deputy Jailor. As per rule
5 of the 1980 Rules, there were two sources of recruitment
to the post of Deputy Jailor; one, by direct recruitment
and the other, by promotion from amongst the
permanent Assistant Jailors in ratio of 50% each. The B
word 'only' in rule 5 of the 1991 Rules is e>f significance
and it becomes clear therefrom that rule 5 of the 1991
Rules has no application at all for determination of inter
se seniority of the 1991 and 1994 appointees because
· 1980 Rules provide for appointment to the posts of ,_c
' Deputy Jailor by direct recruitment as well as by
promotion. It is only where service rules in the State of
U.P. provide for appointments by direct recruitment alone
that rule 5 of. 1991 Rules comes into play for
determination of seniority and not otherwise. The reliance 0
placed by the High Court upon second proviso to rule 5
of the 1991 Rules for determination of inter se seniority
amongst 1991 and 1994 appointees is, thus, misplaced.
The High Court fell into grave error in not appreciating
that rule 5 of the 1991 Rules operated where service rules ·
provide for appointments by direct recruitment only. Rule E
6 and rule 7 of the 1991 Rules also have no application
as these rules provide for determination of seniority -
where appointments are made by promotion only from a
single feeding cadre or only from several feeding cadres.
Rule 8 of the 19~1 Rules made a provision for F
determination of seniority where according to service
rules appointments were made both by·promotion and by
direct recruitment. The marginal note of rule 8 'seniority
where appointments by promotion and direct recruitment'
and the body of sub-rule (1) of rule 8 that provides, 'where G
according to the service rules appointments are made
both by ·promotion and by direct recruitment', leave no
manner of doubt that rule 8 of the 1991 Rules Would
govern the controversy in the instant case since ·19so
Rules clearly provided' for appointments to the posts of H,
836 SUPREME COURT.REPORTS [2011) 2 S.C.R.
A Deputy Jailor by two sources i.e., by direct recruitment
as well as by promotion. The controversy in hand related
to determination of seniority between two groups of
direct recruits to the posts of Deputy Jailor, one
appointed in 1991 through the selection made by the
B Selection Commission and the other in 1994 by the
UPPSC and the controversy did not relate to
determination of inter se seniority between direct
recruitees and the promotees, but that would not take
away the applicability of rule 8 of the 1991 Rules. It is so
c because in the 1991 Rules, the basis of categorization for
the purpose of determination of seniority is the method
and manner for appointments in the service rules. It is in
this view of the matter that rules 5, 6, 7 and 8 of 1991
Rules provided for determination of seniority amongst
different categories of appointments made under the
0
service rules. Once it is held that rule 8 is applicable for
determination of inter se seniority amongst 1991 and
1994 recruitees to the posts of Deputy Jailor, it is clear
that their seniority has to be determined on the basis of
E their substantive appointments. Sub-rule (1) of rule 8 In
unambiguous terms states that the seniority of persons,
subject to the provisions of the sub-rules (2) and (3), shall
be determined from the date of the order of their
substantive appointments. Rule 4(h) defines 'substantive
appointment' as an appointment, not being an ad-hoc
F appointment, on a post in the cadre of service, made after
selection in accordance with the service rules relating to
that service. It, thus, becomes abundantly clear that for
determination of inter se seniority between the two rival
groups (1991 and 1994 appointees by direct recruitment)
G what is relevant is the date of the order of their
substantive appointment and since the substantive
appointment of 1991 appointees is much prior in point of
time, they must rank senior to the 1994 appointees. [Para
19] [853-B-H; 854-A-H; 855-A-C]
H
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 837
& ORS.
Ram Janam Singh v. State of U.P. (1994) 2 SCC 622; A
State of Bihar and Ors. v. Akhouri Sachindia Nath and Ors.
(1991) Supp (1) SCC 334; Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra & Ors. (1990) 2
sec 715- relied on.
B
3. The legal position with regard to determination of
seniority in service is summarized 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 started with the issuance of adver~isement or C
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 for fixing seniority inter D
, se between one officer or the other or between one group
of officers and the other recruited from the different
sources. Any departure therefrom in the statutory rules,
executive instructions or otherwise must be consistent
with the requirements of Articles 14 and 16 of the E
Constitution; (iii)Ordinarily, notional seniority may not be
granted from the back date and if it is done, it must be
based on objective considerations and on a valid
classification and must be traceable to the statutory rules;·
. (iv)The seniority cannot be reckoned from the date of F
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
. relevant service rules. It is so because seniority cannot
be given on retrospective basis when an employee has
not even born in the cadre and by doing so It may G
adversely affect the employees who have been appointed
validly in the mean time.In light of the legal position and
rule 8 of the 1991 Rules, it is plain that 1991 appointees
who were selected and appointed in accordance with the
service ,rules cannot be made junior to 1994 appointees H
838 SUPREME COURT REPORTS [2011] 2 S.C.R.
,A even if it. is assumed that the selection and appointment
of 1994 appointees was for earlier vacancies. The 1991
appointees having been appointed substantively much
prior in point of time, they are entitled to rank senior to
1994 appointees. Rule 5 of the 1991 Rules has no
B application for determination of inter se seniority of the
Deputy Jailors appointed by direct recruitment in 1991
and 1994. The consideration of the matter by the High
Court is apparently flawed and cannot be sustained. In
the present fact situation, it must be held that 1994
c appointees cannot legitimately claim their seniority over
1991 appointees. [Paras 30, 31] [860-C-H; 861-A-D]
PER AFTAB ALAM, J:
HELD: 1. In service law it is not unknown (especially
D in cases where recruitments are made regularly and the
selection process is not inordinately prolonged) that even
while a select list is alive and it is yet to be completely .
exhausted another select list on the basis of the next
selection comes into being and appointments are made
E from that list. In such a situation certain vacancies
relatable to the previous selection may still be filled up
from the waiting list/unexhausted previous list and In
those cases even though the appointment might take
place later, by virtue of the proviso in question, the
F candidate from the previous list would rank senior to the
candidate appointed from the third list. The proviso relied
upon by the High Court has no application to t~e facts
of this case where the two appointments, based on
selections made by two different agencies, are separated
by a gap of two and a half years. [Para 4] [863-C-F]
G
2. The facts of the instant case were extraordinary
and seemed to fall completely outside the provisions of
the 1991 Rules. An attempt to fit those facts Into any of
the provisions of the 1991 Rules would amount to dolr1g
H
"r- '·.
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 839
& ORS.
violence to the rules. The 1991 Rules were not made A
exclusively for the Jail Executive Subordinate Service (to
which the post of Deputy Jailer belongs) but those rules
apply to all government servants for whose recruitments
rules were framed under the proviso to Article 309 of the
· Constitution. In making rules of general application it is B
not possible to take into account a situation that is way
out of the normal. [Para 6] [864-8-DJ
3. The situation arising from the two sets of
appointments and the resultant dispute of seniority was C
highly anomalous. It should be accepted as such instead
of trying to fit the facts into any of the rules of the 1991
Rules. The 1991 Rules were not designed to resolve a
- dispute of seniority arising from such facts. In case the
seniority between the appellants and the first respondent
Is to be determined outside the 1991 Rules, one has to D
go to the basic principles for determination of seniority.
One cardinal principle for determination of seniority is that
unless provided for in the rules, seniority can not relate
back to a period prior to the date of the incumbent's birth
in the service/cadre. In the facts of this case, the issue of E
seniority between the appellants and the first respondent
must be decided on the basis of the said principle and
there is no need to refer to rule 8 of the 1991 Rules. By
this way, the first respondent cannot claim seniority over
the. appellants and the appellants would rank senior to F
the first respondent. [Paras 8, 9, 12) [866-C-E; 868-D-E]
Ram Janam Singh v. State of U.P. and Anr. (1994) 2
SCC 622;Uttaranchal Foresh Rangers' Association (Direct
Recruit) and Ors. (2006) 10 sec 346; State of Bihar & Ors.
v. Akhouri Sachindra Nath & Ors. Jagdish Ch. Patnaik (1991) G
(suppl.) 1 SCC 334; Suraj Parkash Gupta v. State of J & K
(2000) 7 sec 561 - relied on.
H
840 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Case Law Reference:
Per R.M. Lodha, J.:
(1998) 4 sec 456 referred to Paras 15, 23
B (1999) 9 sec 596 referred to Paras 15, 25
(2006) 1o sec 346 referred to Para 15, 26
(2001) 1 sec 683 referred to Para 15, 27
(1997) 3 sec 261 referred to Para 16
c
(1990) 2 sec 669 referred to Paras 17, 21
1987 (Suppl.) sec 401 referred to Paras 17, 20
(2008) 1 sec 12s referred to Para 17, 28
D (1998) 5 sec 246 referred to Paras 17, 24, 28
(1994) 2 sec 622 referred to Para 22
(1991)Supp (1)SCC 334 referred to Para 26
E (1990) 2 sec 115 referred to Para 29
Per Aftab Alam, J:
(1994) 2 sec 622 relied on Para 10 ...
F (2006) 1o sec 346 relied on Para 10
(1991)Supp (1)SCC 334 relied on Para 10
(2000) 1 sec 561 relied on Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 9906 of 2003.
From the Judgment & Order dated 02.12.2002 of the High
Court of Judicature at Allahabad in Civil Writ Petition No. 22919
of 2001.
H
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 841
.& ORS.
WITH A
C.A. Nos. 9907 & 9908 of 2003.
P.N. Mishra, Vijay Hansaria, Pramod Swaroop, T.N. Singh,
Amit Singh, Kamlendra Mishra, Vibhakar Mishra, K.L. Janjani,
Abhisth Kumar, Yatish Mohan, Vinita Y. Mohan, Akshay Kumar, B.
Viswajit Singh, Ravi Prakash Mehrotra, Neeru Vaid for the
appearing parties.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. In this group of three appeals, by c
special leave, the question presented for consideration before
this Court relates to determination of seniority between two
groups of direct recruits to the posts of Deputy Jailor (Group
·'C' post}, one appointed in 1991 through the selection made
by Uttar Pradesh Subordinate Services Selection Commission D
·(for short, 'Selection Commission'} and the other in 1994 by ·
Uttar Pradesh Public Service C,..ommission (for short, 'UPPSC'}.
2. The Uttar. Pradesh Jail Executive Subordinate (Non-
Gazette~} Service Rules, 1980 (for short, '1980 Rules'} were
framed by t.he Governor of the State in exercise of the powers E1
conferred by the proviso to Article 309 of the Constitution which
, were published in U.P. Gazette, Extraordinary on June 9, 1980.
Rule 5 of the 1980 Rules deals with the recruitment to the posts
of Deputy Jailor and Assistant Jailor in the service. The
recruitment fo the posts of Deputy Jailor is by two sources: (i} F
· by direct recruitment and (ii} by promotion from amongst the
permanent Assistant Jailors. Rule 15 provides for procedure
·for direct recruitment to the posts of Deputy Jailor and Assistant
Jailor. It reads thus :
"15. Procedure f~direct recruitment to the posts of Deputy G
Jailor, Assistant Jailor.""'.'"(1} Applications for permission to
appear in the competitive examination shall be called by
the Commission in the prescribed form, which may be
obtained from the Secretary to the Commission on
payment. '. H -
842 SUPREME COURT REPORTS [2011] 2 S.C.R.
A (2) No candidate shall be admitted to the
examination unless he holds a certificate of admission
issued by the Commission.
(3) After the results of the written examination have
been received and tabulated, the Commission shall having
B
regard to the need for securing due representation of the
candidates belonging to the Scheduled Castes,
Scheduled Tribes and others under Rule 6, summon for
interview such number of candidates as, on the result of
the written examination, have come up to the standard fixed
c by the Commission in this respect. The marks awarded
to each candidate at the interview shall be added to the
marks obtained by him in the written examination.
(4) The Commission shall prepare a list of
D candidates in order of their proficiency as disclosed by the
aggregate of marks obtained by each candidate at the
written examination and interview and recommend such
number of candidates as they consider fit for appointment.
If two or more candidates obtain equal marks in the
E aggregate, the name of the candidate obtaining higher
mark in the written examination shall be placed higher in
the list. The number of names in the list shall be larger, but
not larger by more than 25 per cent of the number of
vacancies. The Commission shall forward the list to the
-F appointing authority."
3. Part-VI of the 1980 Rules deals with appointment,·
probation, confirmation and seniority. For the purposes of these
appeals, rule 22 of the 1980 Rules needs to be referred which
is as follows:
G
"22. Seniority.-Seniority in any category of posts in the
service shall be determined from the date of substantive
appointment and if two or more persons are appointed
together, from the order in which their names are arranged
H in the appointment order :
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 843
& ORS. [R.M. LODHA, J.]
Provided that- A
(1) the inter se seniority of persons directly appointed
to the service shall be the same as determined at the time
of selection.
(2) the inter se seniority of persons appointed to the B
posts of Deputy Jailor by probation shall be the same as
it was in the substantive post held by them at the time of
promotion; and
n
c
4. On December 26, 1987, the UPPSC published an
advertisement (No. A-5/E-4/87-88) for holding the Combined
Lower Subordinate Services Examination, 1987. It was
mentioned in the advertisement that the number of vacancies
to be filled on the result of the examination is expected to be 0
• approximateiy 600 which included the vacancies in the cadre
, of Deputy Jailor. There is dispute of fact about actual number
of vacancies in the cadre of Deputy Jailor notified by the
UPPSC in the above adverti~ement but the stand of the first
respondent that 114 vacancies of Deputy Jailers were notified E
may be assumed as fact for the purpose of these appeals.
5. The Uttar Pradesh Subordinate Services SelectiOTl
(Commission) Act, 1988 (for short, '1988 Act') was enacted by
the U.P. Legislature to establish a Subordinate Services
Selection Commission for direct recruitment to all Group 'C' F
posts in the State of U.P. The 1988 Act came into force on
F~bruary 15, 1988.
6. On November 25, 1989, a notification was issued by
the Governor of Uttar. Pradesh clarifying that the vacancies ·
already referred to the UPPSC shall be filled on the G
recommendation of the UPPSC alone.
7. Pursuant to the advertisement (No. A-5/E-4/87-88)
dated December 26, 1987, the UPP SC conducted the
preliminary examinations on September 24, 1989.
H
844 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 8. On October 27, 1990, the Selection Commission
advertised and notified that for filling 60 posts of Deputy Jailor,
a competitive examination, 'U.P. Karapal (Deputy Jailor)
Examination, 1990' shall be held. The examination was held
on due date and after holding oral interview, the Selection
B Commission sent a select list to the State Government in 1991
for issuance of appointment letters.
9. On November 23, 1991, the State Government issued
appointment letters to the candidates selected by the Selection
Commission. The present appellants in Civil Appeal No. 9906
C of 2003 and Civil Appeal No. 9908 of 2003 were amongst
those who were appointed by the State Government pursuant
to the selection made by the Selection Commission.
10. In 1991, the UPPSC also conducted the main
D examination for filling up different posts of Group 'C' including
the posts of direct recruitment of Deputy Jailor. The result
thereof was declared on July 27, 1993. The UPPSC, then, sent
the select list to the State Government. The State Government
issued appointment letters to the selected candidates on April
E 26, 1994. The private first respondent was one of them.
11. The Uttar Pradesh Government Servants Seniority
Rules, 1991 (for short, '1991 Rules') were framed under the
proviso to Article 309 of the Constitution effective from March
20, 1991. The 1991 Rules were made applicable to all
F government servants in respect of whose recruitment and
conditions of service, rules may be or have been made by the
Governor under the proviso to Article 309 of the Constitution
and had overriding effect to other service rules. Rule 5 and rule
8 of the 1991 Rules which are relevant for the purposes ofthese
G appeals read as under:
"5. Seniority where appointments by direct recruitment
only.-Where according to the service rules appointments
are to be made only by the direct recruitment the seniority
· H inter se of the persons appointed on the result of any one
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 845
& ORS. [R.M. LODHA, J.]
selection, shall be the same as it is shown in the merit list A
prepa_red by the Commission or the Committee, as the
case may be:
Provided that a candidate recruited directly may lose
his seniority, if he fails to join without valid reasons when
B
vacancy is offered to him, the decision of the appointing
authority as to the validity of reasons, shall be final:
Provided further that the persons appointed on the
result of a subsequent selection shall be junior to the
persons appointed on the result of a previous selection. c
Explanatiori.-Where in the same year separate
selections for regular and emergency recruitment are
made, the selection fpr regular recruitment shall be
deemed to be the previous selection. D
•
8. Seniority where appointments by promQtion and direct
recruitment.-(1} Where according to the service rules
. appointments .are made both by promotion and by direct E
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 substal)tive -
appointments, and if two or· more persons are appointe(:I
together, in the order in which their names are arranged F
in the appointment ord'er :
· Provided that if the appointment order specifies a particular
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 G
the date of issuance of the order:
Provided further that a candidate recruited directly may lose
his·senioritY·1fe~:~~jC)iri without valid rea!)ons, when
vaeancy is offered to him the decision of the appointing H
846 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 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
B 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
c 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
D seniority of promotees vis-a-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.
E lllustrations.-(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
F 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 :
G
First .. Promotee
Second to fourth .. Direct Recruits
Fifth .. Promotee
H
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 847
& ORS. [R.M. LODHA, J.]
Sixth to eight .. Direct recruits A
and so on
Provided that :
(i) where appointment from any source are made in B
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; c
(ii) where appointment from any source fall short of the
prescribed quota and appointment against such
unfil,led vacancies are made in subsequent year or
years, the persons so appointed shall not get
seniority of any earlier year but shall get the D
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;
E
(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 made, the F
persons so appointed shall get the seniority of that
very year as if they are appointed against the
vacancies of their quota."
The parties are in agreement that 1991 Rules were in existence
when the appointments were made to the posts of Deputy Jailor G
in 1991 and 1994.
12. On August 29, 1995, a tentative seniority list of Deputy
Jailors was notified by the Inspector General (Prisons) - the
· a1:1pointing authority - and objections were called for from the H~
848 SUPREME COURT REPORTS (2011] 2 S.C.R.·
A concerned officers. In that list, the candidates appointed in 1991
were shown senior to the candidates appointed in 1994. The
litigation between the two groups started with this list. The
tentative seniority list dated August 29, 1995 came to be
challenged before Allahabad High Court in three writ petitions;
8 one by Bholanath Mishra (Writ Petition No. 26560of1996), the
other by Samar Bahadur Singh (Writ Petition No. 1313812000)
and the third by the first respondent herein Reevan Singh (Writ
Petition No. 22919/2001 ). The writ petition filed by Sa mar
Bahadur Singh was dismissed by the High Court on the ground
C of availability of alternative remedy before the State Service
Tribunal. The writ petition filed by the first respondent herein was
allowed on December 2, 2002 and the High Court directed the
State of Uttar Pradesh and the Director General (Prisons),
Lucknow to treat the appointees of 1994 senior to 1991
appointees. The contention raised by the ·writ petitioner (first
D respondent herein) before the High Court was that in view of
the second proviso to rule 5 of 1991 Rules, the Deputy Jailers
who were selected in the selection which commenced in 1987
must be treated seniOr to those selected pursuant to the
selection that commenced in 1990. The Division Bench agreed
E with this contention and held as follows: ·
• ......... In our opinion the correct interpretation ofthe.
proviso to Rule 5 of the U.P. Govt. Servant Rules, 1991 is •
that persons like the petitioner who were selected in the
'F selection process which commenced in 1987 should be -
treated as senior to there (sic) selected in selection ·
process which commenced in 1990.~ · ·
While construing the words 'appointed on the result of a
G subsequent selection' in second proviso to rule 5 of t~e 1991
Rules, the High Court held as under: · -
"It may be noted from the language used in the proviso to
Rule 5 tnat''a distinction has been made between
appointment and selection. The words "appointed on the
H result of a subsequent selection• clearly_indii:ate that for
PAWAN, PRATAP SINGH & ORS. v. REEVAN SINGH 849
& ORS. [R.M. LODHA, J.] .
the purpose of the proviso appointment is different from A
· selection. Hence even if persons selected on the basis of
the selection which commenced in 1990 were given
appointment before giving appointment to the petitioner
and others similarly situate the latterwill be senior to the ·
former b~cause proviso to Rule 5 treats selection different B
from appointment. Had that not been so the language of
the provision would have been different?
The High Court went on to observe further as under :
"There is no dispute that the process of selection of the C
petitioner and others similarly situate had begun in 1987
whereas selection in which the newly amended (sic)
respondent nos. 3 and 4 and others situated similar to
them had begun in 1990. Thus the selection process of the
petitioner and others similarly situate had begun three D
years prior to the beginning of the selection of respondent
nos. 3 and 4 and others similarly situate. It was no fault of
the petitioner and others similarly situate that their selection
was prolonged far as much as six years, whereas the ·
selection of respondent no. 3 and 4 and others similarly E
situate was completed in just one year."
The High Court held that 1991 Rules will prevail over 1980
Rules, if there is any conflict between the two Rules. It held :
• ......... In the present case the proviso to Rule 5 of the F
1991 Rules makes it clear that appointment is not to be
treated as part of the selection because the words used
in the provision are "appointed on the result of a
subsequent selection". The petitioner and others similarly
situate were appojnted against the vacancy which existed G
in 1987 while the selection of respondent nos. 3 and 4 and
others similarly situate:by the U.P. Subordinate Selection
Commission were made against vacancies which existed
in 1990. In our opinionthe petitioner and others similarly
situate should not suffer, for no fault of theirs." H
850 SUPREME COURT REPORTS [2011) 2 S.C.R.
A 13. Being not satisfied with the judgment of the High Court
dated December 2, 2002, three appeals, by special leave, have
been filed, one by the State of Uttar Pradesh and the other two
by 1991 appointees.
14. We have heard M/s. P.N. Mishra, Vijay Hansaria and
8
Subodh Markandey, senior counsel for the appellants and Shri
Pramod Swaroop, senior counsel for Respondent No. 1. On
behalf of the appellants, it is urged that rule 5 of the 1991 Rules
has no application as it is applicable where the service rules
C provide for appointment by direct recruitment only. Since the
posts of Deputy Jailor, as per 1980 Rules, are to be filled by
direct recruitment as well as by promotion, the mode and
manner of determination of seniority provided in rule 5 cannot
be applied and instead rule 8 of the 1991 Rules would be
applicable for the purposes of determination of seniority.
D
15. Learned senior counsel for the appellants submitted
in the alternative that even if rule 5 of the 1991 Rules is held to
be applicable, second proviso appended to rule 5 does not
contemplate that the persons appointed pursuant to the result
E of a subsequent selection (although their date of substantive
appointment is earlier in point of time) shall rank junior to the
persons appointed later because their process bf selection was
initiated earlier. It was submitted that the word 'result' in second
proviso of rule 5 of the 1991 Rules is not without significance.
F Our attention was drawn to rule 4 (h) of the 1991 Rules that
defines the expression 'substantive appointment' and rule 9
which provides for preparation of seniority list and it was
submitted that the private appellants were substantively
appointed in 1991 in the cadre of Deputy Jailers by following
G the procedure and in accordance with the 1980 Rules much
before the 1994 appointees. It was argued on behalf of the
appellants that. the year of vacancy against which a particular
person is appointed is wholly irrelevant for the purpose of
determination of seniority and seniority cannot relate back to
H the date of vacancy. In this regard, reliance was placed upon
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 851
& ORS. [R.M. LODHA, J.]
the decisions of this Court in : (i) Jagdish Ch. Patnaik & Ors. A
v. State of Orissa & Ors. 1; (ii) Ajit Kumar Rath v. State of
Orissa & Ors. 2; (iii) Uttaranchal Forest Rangers' Assn. (Direct
Recruit) & Ors. v. State of U.P. & Ors. 3 and (iv) State of
Uttaranchal & Anr. v. Dinesh Kumar Sharma4 .
8
16. Learned senior counsel for the appellants also
contended that the High Court erred in invoking Article 226 of
the Constitution in the matter when the writ petition filed by
Samar Bahadur Singh (Writ Petition No. 13138/2000) was
dismissed on the ground of alternative remedy. In this regard,
the Constitution Bench decision of this Court in L. Chandra C
Kumar v. Union of India & Ors. 5 was referred.
17. On the other hand, Mr. Pramod Swaroop, learned
senior counsel for the contesting first respondent stoutly
defended the judgment of the High Court. He argued that the o
High Court was justified in relying upon second proviso to rule
. 5 of the 1991 Rules and holding that the candidates appointed
on the basis of result of earlier selection process must rank
senior to the candidates who were appointed on the basis of
the result of subsequent selection. He would submit that the E.
UPPSC started selection process for filling 114 posts of Deputy
Jailor in 1987; it was in this process of selection that the
contesting private respondent was selected and appointed
(although in the year 1994) and insofar as the 1991 appointees
are concerned they underwent the subsequent selection process F
which started in the year 1990. Mr. Pramod Swaroop
_ contended that 1991 Rules have the overriding effect and the
seniority amongst 1991 and 1994 appointees has to be
determined with reference to rule 5 of 1991 Rules. According
to him, the expression 'selection' in second proviso to rule 5 G
(1998) 4 sec 456.
\
1.
2. (1999) 9 sec 596.
3. c2006) 10 sec 346.
4. c2001) 1 sec 683.
· 5. (1997) 3 sec 261. H
852 SUPREME COURT REPORTS . [2011) 2 S.C.R.
A cannot be construed to mean only the 'final selection' and since
the process of selection involves several steps which begins
with the issuance of the advertisement and ends with the
preparation of select list, the expression 'result of selection'
means the result of entire selection process. In this regard,
8 heavy reliance was placed by him on few decisions of this
Court, .namely, (i) A.P. Public Service Commission,
Hyderabad & Anr. v. B. Saraf Chandra & Ors. 6 (ii) State of U.P.
v. Rafiquddin & Ors. 7; (iii) Surendra Narain Singh & Ors. v.
State of Bihar & Ors. 8 and (iv) Ba/want Singh Narwal & Ors. v.
C State of Haryana & Ors. 9•
18. It must be stated immediately that the recruitment to
the posts of Deputy Jailor in the State of Uttar Pradesh is
governed by the 1980 Rules which have been framed by the
Governor in exercise of the powers conferred by the proviso
D to Article 309 of the Constitution. 1980 Rules provide for cadre
of service, procedure for recruitment to the post of Deputy
Jailor, reservation, academic qualifications, determination of
vacancies, appointment, probation, confirmation and inter se
seniority of persons appointed to the service. However, by
E subsequent Rules, namely, 1991 Rules which too were made
by the Governor under the proviso to Article 309 of the
Constitution, comprehensive provisions have been made for the
determination of seniority of all government servants in the State
of Uttar Pradesh. Rule 2 of the 1991 Rules says that these rules
F shall apply to all government servants in respect of whose
recruitment and conditions of service, rules may be or have
been made by the Governor under the proviso to Article 309
of the Constitution and rule 3 gives to the 1991 Rules overriding
effect notwithstanding anything to the contrary contained in
G earlier service rules. In this view of the matter, inter se seniority
amongst 1991 and 1994 appointees by direct recruitment has
6. (1990) 2 sec 669.
7. 1987 (Suppl.) sec 401.
8. (1998) s sec 246.
H 9. c2000) 7 sec 728.
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 853
& ORS. [R.M: LODHA, J.]
to be determined under the 1991 Rules and rule 22 of the 1980 A
Rules has to give way to the 1991 Rules.
19. Now, insofar as 1991 Rules are concerned, the said
Rules provide for determination of seniority in relation to
different categories. Rule 5 makes provision for determination B
of seniority in cases where according to service rules,
appointments are made only by the direct recruitment. It would .
be seen that 1980 Rules are the relevant service rules for
appointment to the posts of Deputy Jailor. As per rule 5 of the
1980 Rules, there are two sources of recruitment to the post c
· : of Deputy Jailor; one, by direct recruitment and the other, by
promotion from amongst Jhe permanent Assistant Jailors in
ratio of 50% each. The w6ra 'only' in rule 5 of the 1991 Rules
is of significance and it becomes clear therefrom that rule 5 of
the 1991 Rules has no application at all for determination of D
inter se seniority of the 1991 and 1994 appointees because
1980 Rules provide for appointment to the posts of Deputy
Jailor by direct recruitment as well as by promotion. It is only
where service rules in the State of U.P. provide for
appoinlments by direct recruitment alone that rule 5 of 1991
Rules comes into play for determination of seniority and not E
otherwise. The reliance placed by the High Court upon second
proviso to rule 5 of the 1991 Rules for determination of inter
se seniority amongst 1991 and 1994 appointees is, thus,
misplaced. The High Court fell into grave error in not
appreciating that rule 5 of the 1991 Rules operates where F
service rules provide for appointments by direct recruitment
only. Rule 6 and. rule 7 of the 1991 Rules also have no
application as these rules provide for determination of seniority
where appointments are made by promotion only from a single
feeding cadre or only from several feeding cadres. These G
appeals are not concerned with the determination of inter se
seniority between the promotees. Rule 8 of the 1991 Rules
makes a provision for determination of seniority where
. according to service rules appointments are made both by
. promotion and by direct recruitment. The marginal note of rule H
854 SUPREME COURT REPORTS [2011] 2 S.C.R.
·A 8 'seniority where appointments by promotion and direct
recruitment' and the body of sub-rule (1) of rule 8 that provides,
'where according to the service rules appointments are made
both by promotion and by direct recruitment', leave no manner
of doubt that rule 8 of the 1991 Rules would govern the
B controversy in the present case since 1980 Rules clearly
provide for appointments to the posts of Deputy Jailer by two
sources i.e., by direct recruitment as well as by promotion. It is
true that the controversy in hand relates to determination of
seniority between two groups of direct recruits to the posts of
C Deputy Jailor, one appointed in 1991 through the selection
made by the Selection Commission and the other in 1994 by
the UPPSC and the controversy does not relate to determination
of inter se seniority between direct recruitees and the
promotees, but that does not take away the applicability of rule
o 8 of the 1991 Rules. It is so because in the 1991 Rules, the
basis of categorization for the purpose of determination of
seniority is the method and manner for appointments in the
service rules. It is in this view of the matter that rule 5, rule 6,
rule 7 and rule 8 of the 1991 Rules provide for determination
E · of. seniority amongst different categories of appointments
made under the service rules. Once it is held that rule 8 is '
applicable for determination of inter se seniority amongst 1991
and 1994 recruitees to the posts of Deputy Jailer, it is clear
that their seniority has to be determined on the basis of their
F substantive appointments. Insofar as the present controversy
is concerned, none of the provisos to sub-rule (1) is attracted '
since the appointment orders of 1994 appointees do not
specify the back date nor these appeals are concerned with a
situation where 1991 appointees failed to join on time. These
appeals are also not concerned with seniority inter se of
G persons appointed on the result of one selection through direct
recruitment or through direct recruitment and promotion in one
selection and, therefore, provisions of sub-rules (2) and (3) of
rule 8 are also not attracted. Sub-rule (1) of rule 8 in
unambiguous terms states that the seniority of persons, subject
H .to the provisions of the sub-rules (2) and (3), shall be
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 855
& ORS. [R.M. LODHA, J.]
determined from the date of the order of their substantive A
appointments. Rule 4(h) defines 'substantive appointment' as
an appointment, not being an ad-hoc appointment, on a post
in the cadre of service, made after selection in accordance with
the service rules relating to that service. It, thus, becomes
abundantly clear that for determination of inter se seniority, B
between the two rival groups (1991 and 1994 appointees by
direct recruitment) what is relevant is the date of the order of
their substantive appointment and since the substantive
appointment of 1991 appointees is much prior in point of time,
they must rank senior to the 1994 appointees. C
20. It is now appropriate to consider the authorities cited
at the Bar and a couple of other decisions. In Rafiquddin7, this
Court in the context of U.P. Civil Service (Judicial Branch)
Rules, 1951 made general observations that seniority in the
service is determined on the basis of the year of the competitive D
examination irrespective of the date of appointment and inter.
se seniority of candidates recruited to the service is determined
on the basis of their ranking in the merit list.
21. In A.P. Public Service Commission 6 , this Court was E
concerned with the Andhra Pradesh Police Service Rules,
1966. While dealing with the word 'selection' in rule 5(A)(i) of
the said Rules, this Court observed as follows : ,
"If the word 'selection' is understood in a sense meaning F
thereby only the final act of selecting candidates with
preparation of the list for appointment, then the conclusion
of the Tribunal may not be unjustified. But round phrases
cannot give square answers. Before accepting that
meaning, we must see the consequences, anomalies and
uncertainties that it may lead to. The Tribunal in fact does G
not dispute that the process of selection begins with the
issuance of advertisement and ends with the preparation
of select list for appointment. Indeed, it consists of various
steps like inviting applications, scrutiny of applications,
H
856 SUPREME COURT REPORTS [2011] 2 S.C.R.
.A rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling for
interview or viva voce and preparation of list of successful
candidates for appointment. Rule 3 of the Rules of
Procedure of the Public Service Commission is .also
B indicative of all these steps. When such are the different
steps in the process of selection, the minimum or maximum
age for suitability of a candidate for appointment cannot
be allowed to depend upon any fluctuating or uncertain
date. If the final stage of selection is delayed and more
c often it happens for various reasons, the candidates who
are eligible on the date of application may find themselves
eliminated at the final stage for no fault of theirs. The date
to attain the minimum or maximum age must, therefore, be
specific, and determinate as on a particular date for
0 candidates to apply and for recruiting agency to scrutinise
applications. It would be, therefore, unreasonable to
construe the word selection only as the factum of
preparation of the select list. Nothing so bad would have
been intended by the rule making authority."
E Pertinently, the aforesaid observations of this Court with regard
to the word 'selection' are in the context of the age eligibility
as the provision under consideration read, 'has completed the
age of 21 years and had not completed the age of 26 years
on the first day of July of the year in which the selection is
F made'. The aforesaid observations, therefore, have to be read
in the context of the provision under consideration before this
Court.
22. In Ram Janam Singh v. State-of U.P. and Anr. 10 , this
G Court reiterated that the date of entry into a service is the safest
rule to follow while determining the inter se seniority between
one officer or the other or between one group of officers and
the other recruited from the different sources. It was observed
that this is consistent with the requirement of Articles 14 and
H 10. (1994) 2 sec s22.
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 857
& ORS. [R.M. LODHA, J.)
16 of the Constitution. It was, however, observed that if the A
·circumstances so require, a group of persons can be treated
a class separate from the rest for any preferential or beneficial
treatment while fixing their seniority, but, normally such
classification should be by statutory rule or rules framed under
Article. 309. B
23. A two-Judge Bench of this Court in Jagdish Ch.
Patnaik1, while construing the word 'recruited' occurring in
Orissa Service of Engineers Rules, 1941, held that a direct
recruit is recruited when formal appointment order is issued and C
· not when recruitment process is initiated. This is what this Court
said:
"34. The only other contention which requires
consideration is the one raised by Mr Raju Ramachandran,
learned Senior Counsel appearing for the intervenors, to D
the effect that the expressions "recruitment" and
"appointment" have two different concepts in the service
jurisprudence and, therefore, when Rule 26 uses the
expression "recruited" it must be a stage earlier to the
issuance of appointment letter and logically should mean E
when the selection process started and that appears to be
the intendment of the rule-makers in Rule 26. We are,
however, not persuaded to accept this contention since
under the scheme of Rules a person can be said to be
recruited into service only on being appointed to the rank F
of Assistant Engineer, as would appear from Rule 5 and .
Rule 6. Then again in case of direct recruits though the
process of recruitment starts when the Public Service
Commission invites applications under Rule 10 but until
and unless the Government makes the final selection under G
Rule 15 and issues appropriate orders after the selected
candidates are examined by the Medical Board, it cannot
be said that a persoh has been recruited to the service.
That being the position it is difficult for us to hold that in
the seniority rule the expression "recruited" should be H .
858 SUPREME COURT REPORTS [2011] 2 S.C.R.
A interpreted to mean when the selection process really
started. That apart the said expression "recruited" applies
not only to the direct recruits but also to the promotees. In
case of direct recruits the process of recruitment starts with
the invitation of application by the Commission and in case
B of promotees it starts with the nomination made by the
Chief Engineer under Rule 16. But both in the case of direct
recruits as well as in the case of promotees the final
selection vests with the State Government under Rules 15
and 18 respectively and until such final selection is made
c and appropriate orders passed thereon no person can be
said to have been recruited to the service. In this view of
the matter the only appropriate and logical construction that
can be made of Rule 26 is the date of the order under
which the persons are appointed to the post of Assistant
Engineer, is the crucial date for determination of seniority
D
under the said Rule ........ ."
24. While dealing with the dispute relating to inter se
seniority of Munsifs-one set of Munsif recruited on the basis
of 15th examination held by the Public Service Commission
E under the Bihar Judicial Service (Recruitment) Rules, 1955 and
another set of Muns ifs appointed under the Bihar Civil Service
(Judicial Branch) Ad hoc Recruitment Rules, 1974, in Surendra
Narain Singh", this Court held that candidates recruited against
earlier vacancies shall rank senior to those recruited against
F the later vacancies. •
25. In Ajit Kumar Rath 2, this Court followed Jagdish Ch.
Patnaik' and did not accept the contention that those who were
appointed against the vacancies of the earlier years although,
G appointed later in point of time, must rank senior to the
appointees of the vacancies of the subsequent years though
appointed in prior point of time.
26. This Court emphasized in the case of Uttarancha/
Forest Rangers' Association3 that no retrospective promotion
H can be granted nor any seniority can be given on retrospective
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 859
& ORS. [R.M. LODHA, J.)
basis from a date when an employee has not even born in the A
cadre. In this regard, the Court relied upon earlier decisions of
this Court in State of Bihar & Ors. v. Akhouri Sachindra Nath
& Ors. 11 and Jagdish Ch. Patnaik1•
27. In the case of Dinesh Kumar Sharma 4 , this Court was . 8
concerned with U.P. Agriculture Group '8' Service Rules, 1995
and the 1991 Rules. With reference to rule 8 of the 1991 Rules,
this Court held that seniority cannot be reckoned from the date
of occurrence of the vacancy and· should be reckoned only from
the date of substantive appointment to the vacant post under c
the Rules and not retrospectively from the date of occurrence
of vacancy.
28. The dispute in Ba/want Singh Narwa/ 9 related to
seniority of the Principals, some of whom were appointed
between 1995 and 2000 and others on May 26, 2000. The D
Principals who were appointed on May 26, 2000 were given
1
seniority with retrospective effect from June 2, 1994. This Court
. while relying upon a decision in Surendra Narain Singh8 held
as under:
E
"9. There is no dispute about these general principles. But
the question here is in regard to seniority of Respondents
4 to 16 selected on 1-10-1993 against certain vacancies
of 1992-1993 who were not appointed due to litigation,
and those who were selected against subsequenf F
vacancies. All others from the same merit list declared on
1-10-1993 were appointed on 2-6-1994. Considering a
similar situation, this Court, in Surendra Narain Singh v.
State of Bihar held that candidates who were selected
against earlier vacancies but who could not be appointed G
along with others of the same batch due to certain
technical difficulties, when appointed subsequently, will
have to be placed above those who were appointed
against subsequent vacancies.•
11. (1991 (suppl.) 1 sec 334. H
860 SUPREME COURT REPORTS [2011) 2 S:C.R.
A .29. The Constitution Bench of this Court in Direct Recruit
·Class II Engineering Officers' Association v. State of
Maharashtra & Ors. 12 stated the legal position with regard to
inter se seniority of direct recruits· and promotees and while
doing so, inter alia, it was stated that once an incumbent is
B 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.
30. From the above, the legal position with regard to
c determination of seniority in service can be summarized 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
D 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
E particular service or the date of substantive appointment is the
safest criterion for fixing seniority inter se between one officer
or the otber or between one group of officers and the other
recruited from the different sources. Any departure therefrom
in the statutory rules, executive instructions or othe~ise must ...
F be consistent with the requirements of Articles 14 and 16 of
the Constitution.
(iii) Ordinarily, notional seniority may not be granted from
the back date and if it is done, it must be based on objective
considerations and on a valid classification and must be
G traceable to the statutory rules.
(iv) 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.
H 12. (1990) 2 sec 11s.
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 861
& ORS. [R.M. LODHA, J.]
It is so because seniority cannot be given on retrospective A
basis when an employee has not even born inJhe cadre and
by doing so it may adversely affect the employees who have
been appointed validly in the mean time.
31. In light of the legal position summed up above and rule 8
8 of the 1991 Rules, it is plain that 1991 appointees who were
selected and appointed in accordance with the service rules
cannot be made junior to 1994 appointees even if it is assumed
that the selection and appointment of 1994 appointees was for
earlier vacancies. The 1991 appointees having been appointed C
substantively much prior in point of time, they are entitled to rank
senior to 1994 appointees. As already noticed above, rule 5
of the 1991 Rules has no application for determination of inter
se seniority of the Deputy Jailors appointed by direct
recruitment in 1991 and 1994. The consideration of the matter
by the High Court is apparently flawed and cannot be D'
sustained. In the present fact situation, it must be held that 1994
appointees cannot legitimately claim their seniority over 1991
appointees. -
32. In view of the above, it is not necessary to deal with E
the objection raised by the appellants about maintainability of ..
writ petition filed by contesting private respondent directly
before the High Court bypassing the remedy before the State
Service Tribunal.
F
33. For the foregoing reasons, these appeals are allowed;
the judgment and order dated December 2, 2002 passed by
the Allahabad High Court is set aside. The seniority of the two
groups of direct recruits to the posts of Deputy Jailor,. one
appointed through the selection made by the Uttar Pradesh
Subordinate Services Selection Commission in 1991 and the G
other by Uttar Pradesh Public Service Commission in 1994
shall be now determined as indicated above, if not determined
in the manner stated above, so far. The parties shall bear their
own costs.
H
862 SUPREME COURT REPORTS [2011] 2 S.C.R.
A AFTAB ALAM, J.
1. I have had the benefit of going through the judgment
prepared by my brother Lodha J. The judgment deals with all
the relevant facts and the statutory provisions and by application
B of rule 8 of the Uttar Pradesh Government Servants Seniority ·
Rules, 1991 (the 1991 Rules) concludes that the appellants who
were appointed as Deputy Jailers in 1993 (on the basis of the
selection process that commenced on October 27, 1990)
would rank senior to the first respondent whb was appointed
C in 1994, even though in his case the selection process had·.
commenced much earlier on December 26, 1987. I too reach
the same conclusion but by a different way and for slig!'ltly
differ.ent reasons.
2. The Uttar Pradesh Jail Executive Subordinate (Non-
o Gazetted) Service Rules, 1980 (the 1980 Rules) under which
the appellants and the first respondent were appointed as
Deputy Jailers had, in rule 22, the provision for determinatiori
of seniority in any category of posts in the service. But rule 2i·
of the 1980 Rules was superseded by the 1991 Rules framed·
E under Article 309 of the Constitution and coming into force with ..
effect from March 20, 1991. The 1991 Rules were made
applicable to all government servants whose recruitments were
governed by rules framed under Article 309 of the Constitution
and were given overriding effect over all other service rules.
F Both the appellants and respondent no. 1 were appointed after
the 1991 Rules came into force. Hence, both sides agreed that
the question of their inter se seniority can be determined only
under the provisions of the 1991 Rules.
3. The High Court on application of the (second) proviso
G to rule 5 of the 1991 Rules held that respondent no.1 would
rank senior to the appellants, observing that the candidates who
were selected in the selection process that commenced in 1987
should rank senior to those selected in the selection process /
commencing much later in 1990. By a process of semantic
H reasoning, the High Court tried to make a distinction between
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 863
& ORS. [AFTAB ALAM, J.)
'selection' and 'appointment' and held that under the proviso A
to rule 5 what was determinative was not appointment but
selection. Proceeding on that basis the High Court held that
though the appellants were appointed earlier (in 1991) than
respondent no.1 who was appointed later (in 1994),
nevertheless they would rank junior to him because they were B,
appointed "on the result of a subsequent selection".
·;• 4. I am completely unable to see how the facts of this case
can be squeezed to fit into the proviso to rule 5 of the 1991
Rules. An indication of the kind of cases to which the proviso
·would apply is given in the explanation to it. Further, in service C
law it is not unknown (especially in cases where recruitments
· are made regularly and the selection process is not inordinately
prolonged) that even while a select list is alive and it is yet to
' be completely exhausted another select list on the basis of the
·next selection comes into being and appointments are made D
- from that list. In such a situation certain vacancies relatable to
the previous selection may still be filled up from the waiting list/
unex.hausted previous list and in those cases even though the
appointment might take place later, by virtue of the proviso in
i ,question, the candidate from the previous list would rank senior E
: to the candidate appointed from the third list. To my mind, tlie
•. proviso relied upon by the High Court has no application to the
.:facts of this case where the two appointments, based on
. selections made by two different agencies, are separated by
a gap of two and a half years. F
5. In my brother's judgment, rule 5 is discarded in
preference to rule 8 of the 1991 Rules because the post of
Deputy Jailer is open to two modes of recruitment, one direct
and the other by promotion from amongst the permanent
. Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed G
out that rule 5 of the 1991 Rules begins by expressly stating,
"Where according to the service rules appointments are to be
made only by the direct recruitment.. . ." On the other hand rule
8 begins by saying, "Where according to the service rules
appointments are made both by promotion and by direct H
864 SUPREME COURT REPORTS [2011] 2 S.C.R.
A recruitment.. .. " And under rule 8, seniority is to be determined
on the ·basis of the date of the order of the substantive
appointment. Applying the date of substantive appointment as
the basis to determine seniority the appellants would indeed
rank senior to respondent no.1.
B
6. With full respect, however, I am unable to persuade
myself in regard to the application of rule 8 of the 1991 Rules
to the facts of the case. The facts of the case are extraordinary
and they seem to me, to fall completely outside the provisions
C of the 1991 Rules. An attempt to fit those facts into any of the
provisions of the 1991 Rules would, to my mind, amount to
doing violence to the rules. The 1991 Rules were not made
exclusively for the Jail Executive Subordinate Service (to which
the post of Deputy Jailer belongs) but those rules apply to all
government servants for whose recruitments rules are framed
D under the proviso to Article 309 of the Constitution. In making
rules of general application it is not possible to take into account
a situation that is way out of the normal.
7. In the main judgment, the facts of the case are taken
e note of in detail but it would be useful to briefly recapitulate them
here. Before November 25, 1989, the statutory agency to make
the selection for appointment to the post of Deputy Jailer was
the Uttar Pradesh Public Service Commission (hereinafter
"UPPSC"). On December 26, 1987 the UPPSC issued an
F advertisement for filling up a large number of vacancies in
different posts, including 144 vacancies in the post of Deputy
Jailers. It held the main examination of the candidates applying
in response to the advertisement in 1991 and finally declared
the result on July 27, 1993. On the basis of the list received
G from the UPPSC, the State Government issued appointment
letters to the selected candidates (one of them being
respondent no. 1) on April, 26 1994. In short, the selection
process started by the UPPSC was completed and
materialized in i:lppointments of the selected candidates in
H seven years. In the meanwhile, it seems, the State Legislature,
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 865
& ORS. [AFTAB ALAM, J.]
having regard to the long delays in the completion of selection A
by the UPPSC, decided to lighten its burden by taking away
from it the recruitments on all group 'C' posts in the State. The
State Legislature, accordingly, passed the Uttar Pradesh
Subordinate Services Selection (Commission), Act, 1988 to
establish a Subordinate Services Selection Commission for B
direct recruitment to all group 'C' posts in the State. The Act
came into force with effect from February 15, 1988. After
coming into force of this Act, a notification had to be issued by
the Governor on November 25, 1989, clarifying that the
vacancies for which requisition had earlier been made to the c
·. UPPSC would be filled up on the recommendation of the
UPPSC alone and that is how the UPPSC continued to have
seisin over the vacancies advertised by it on December 26,
1987. The newly formed Selection Commission issued an
advertisement on October 27, 1990, for filling up 60 posts of
0
Deputy Jailer. It completed the selection process and sent the
select list to the State Government in 1991 and on that basis
the appellants were appointed vide appointment letter dated
November 23, 1991 issued by the State Government. At this
stage, it is important to note that in terms of the advertisement E
issued by the Selection Commission on October 27, 1990,
· there was nothing to prevent those (including respondent no.1)
\.who might have applied in response to the earlier
• advertisement by the UPPSC to also apply for the 60 vacancies
under the later advertisement by the Selection Commission.
When this aspect of the matter was pointed out, it was stated F
on behalf of the respondents that by the time the later
advertisement by the Selection Commission was issued on
October 27, 1990 some of the applicants before the UPPSC
had become overage and were no longer eligible to apply.
There are no details available as to how many ,C?f the 144 G
candidates appointed from the select list of the Uf>~SC had
become overage by the time the advertisement of the Selection
Commission came on October 27, 1990; even in the case of
respondent no. 1 it is not stated clearly and definitely that he
was unable to apply in response to the adverti~ement of H
I
I
866 SUPREME COURT REPORTS [2011) 2 S.C.R.
A October 27, 1990, issued by the Selection Commission
because by that time he had become over age. Be that as it
may, this aspect of the matter is only incidental and it is recalled
simply to point out that it is not open to the respondents to
contend that the position in which they are placed is the result
B of circumstances over which they had no control and to make
an appeal in the name of equity.
8. The purpose in recapitulating the facts of the case is to
show that the situation arising from the two sets of appointments
C and the resultant dispute of seniority is highly anomalous. It
should be accepted as such instead of trying to fit the facts into
any of the rules of the 1991 Rules. The 1991 Rules were not
designed to resolve a dispute of seniority arising from such
facts. If I put on the cap of the rule maker I cannot imagine myself
conceiving of a fact situation of this kind and making a provision
D to meet the contingency.
9. Now, :n case the seniority between the appellants and '
the first respondent is to be determined outside the 1991 Rules,
one has to go to the basic principles for determination of
E seniority. One cardinal principle for determination of seniority
is that unless provided for in the rules, seniority can not relate
back to a period prior to the date of the incumbent's birth in
the service/cadre.
10. As a matter of fact this principle is fully dealt with in
F the main judgment in which reference is made to the decisions
of this Court in Ram Janam Singh v. State ofUP, (1994) 2
SCC 622; Uttaranchal Forest Rangers' Association (Direct
Recruit) & Ors. v. State of UP & Ors., (2006) 10 SCC 346; State
of Bihar & Ors. v. Akhouri Sachindra Nath & Ors., 1991 Supp
G (1) sec 334 and the principle is summarized in sub-
paragraphs (2) & (4) of paragraph 30 of the judgment.
11. To the decisions referred to on this point in the main
judgment I may add just one more in Suraj Parkash Gupta v.
H State of J & K, (2000) 7 SCC 561. The decision relates to a
PAWAN PRATAP SINGH & ORS. v. REEVAN SINGH 867
& ORS. [AFTAB ALAM, J.]
dispute of seniority t;>etween direct recruits and promotees but A
, in that case the Court considered the question of ante-dating
the date of recruitment on the ground that the vacancy against
which the appointment was made had arisen long ago. In
paragraph 18 of the decision (at page 578 of the SCC) the
Court framed one of the points arising for consideration in the B
case as follows:
"(4) Whether the direct recruits could claim a retrospective
date of recruitment from the date on which the post in direct
recruitment was available, even though the direct recruit C
was not appointed by that date and was appointed long
thereafter? "
This Court answered the question in the following terms:
"Point 4: D
Direct recruits cannot claim appointment from date of
vacancy in quota before their selection
We have next to refer to one other contention raised by
the respondent-direct recruits. They claimed that the direct E
recruitr:nent appointment can be ante-dated from the date
of occurrence of a vacancy in the direct recruitment quota,
even if on that date the said person was not directly
recruited. It was submitted that if the promotees occupied
the quota belonging to direct recruits they had to be pushed F
down, whenever direct recruitment was made. Once they
were so pushed down, even if the direct recruit came later,
he should be put in the direct recruit slot from the date on
which such a slot was available under the direct
recruitment quota. G
This contention, ~n our view, cannot be accepted. The
reason as to why this argument is wrong is that in service
jurisprudence, a direct recruit can claim seniority only from
the date of his regular appointment. He cannot claim
seniority from a date wnen he was not borne in the service. H
868 SUPREME COURT REPORTS [2011) 2 S.C.R.
A This principle is well settled. In N. K. Chauhan v. State of
Gujarat, Krishna Iyer, J. stated:
Later direct recruit cannot claim deemed dates of
appointment for seniority with effect from the time when
direct recruitment vacancy arose. Seniority will depend
B
upon length of service.
Again, in A. Janardhana v. Union of India, it was held that
a later direct recruit cannot claim seniority from a date
before his birth in the service or when he was in school or
c college. Similarly it was pointed out in A.N. Pathak v.
Secretary to the Government that slots cannot be kept
reserved for the direct recruits for retrospective
appointments."
0 12. In conclusion I would say that in the facts of this case
the issue of seniority between the appellants and respondent
no. 1 must be decided on the basis of the aforesaid principle
and there is no need to refer to rule 8 of the 1991 Rules. By
this way I also hold that respondent no.1 cannot claim seniority
E over the appellants and the appellants would rank senior to
respondent no.1.
13. In the result, the appeals are allow~d. The judgment of
the High Court is set aside and the writ· petition filed by
respondent no. 1 in the High Court is directed to be dismissed.
F
There shall be no order as to costs.
ORDER
In view of the two separate judgments (which are
G concurrent in nature) pronounced by us in these appeals today,
the appeals are allowed.
There shall be no order as to costs.
H D.G. Appeals allowed.
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