RAJENDRA PRATAP SINGH YADAVversusSTATE OF U.P. AND OTHERS

                        [2011] 7 S.C.R. 910


A              RAJENDRA PRATAP SINGH YADAV
                                 v.
                   STATE OF U.P. AND OTHERS
                  (Civil Appeal No. 4949 of 2011)
                           JULY 5, 2011
B
      [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

         Armed Forces: Short Service Commissioned Officer
    commissioned in the Army during the normal period -
C   Entitlement of, for the benefits which were given to the Army
    officers commissioned during the emergency when the nation
    was at war with the foreign enemy - Held: Not entitled - The
    persons who joined the Army service after cessation of the
    foreign aggression and revocation of emergency cannot be
D   treated like persons who have joined the Army during
    emergency due to foreign aggression and similar benefits
    cannot be given to such persons even by making rules -
    Respondent No. 4 was Commissioned Officer during period
    1981-86 - He was appointed in 1994 in U.P. Provisional
E   Police service - His appointment was not against the
    vacancies reserved for the Emergency Commissioned Officer
    under the 1973 Rules - He, therefore, cannot claim benefit
    under 1973 Rules- The 1973 Rules was a temporary statute
    and it died its natural death on expiry thereof - The 1980
F   Rules neither repealed nor replaced the 1973 Rules - The
    1980 Rules were to have a limited application viz.
    regularisation of appointment of Demobilised Officers -
    Consequently, persons who joined the Army after the
    emergency was over, cannot be given the benefit which was
G   extended to those persons who jo{ned the Army during
    emergency - U. P. Non-technical (Class II) services
    (Reservation of Vacancies for Demobilised Officers) Rules,
    1973 - r.3 - U.P. Non-technical (Class II) services
    (Reservation of Vacancies for Demobilised Officers) Rules,
    1980.
H                                  910
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                   911
               U.P. AND ORS.
    Constitution of India, 1950: Article 14 - Differential A
treatment given to those who joined the Army during
emergency cannot be termed as discriminatory and arbitrary.

     Interpretation of statutes: Once a statute expires by efflux
of time, the question of giving effect to a right arising
                                                                    8
thereunder may not arise. .

      Service jurisprudence: Seniority list - Sanctity of - Held:
In service jurisprudence there is immense sanctity of a final
seniority list - The seniority list once published cannot be
disturbed at the behest of person who chose not to challenge C
it for four years - The sanctity of the seniority list must be
maintained unless there are very compelling reasons to do
so in order to do substantial justice - This is imperative to
avoid unnecessary litigation and unrest and chaos in the
services.                                                         D
     Respondent no.4 joined the Indian Army in 1981 as
Short Service Commissioned Officer and was discharged
from the Army in 1·sas. He was then appointed in 1994 as
Deputy Superintendent of Police in Uttar Pradesh                    E
Provincial Police Service. The benefit of back service in
Indian Army was given to respondent no.4 under the
Uttar Pradesh Non-technical (Class II/Group 'B') Services
(Appointment of Demobilised Officers) Rules, 1980 as
amended in 1990. The appellants were also direct recruits
in the Uttar Pradesh Provincial Police Service and were             F
4 to 10 years senior to respondent no.4.

    The question which arose for consideration in the
instant appeals was whether a Short Service
Commissioned Officer who was commissioned in the G
Army during the normal period is entitled to certain
benefits given to the Army. officers who were
commissioned during the emergency when the nation
was at war with the foreign enemy.
                                                                    H
    912      SUPREME COURT REPORTS               [2011] 7 S.C.R.


A         Disposing of the appeals, the Court

       HELD: 1. It is well known that many persons who
  joined the Army service during the foreign aggression
  could have opted for other career or other softer career
  or service but the nation itself being under peril, impelled
8
  by the spirit to serve the nation, they opted for joining the
  Army where the risk was little more. Such persons formed
  a class by themselves and by framing Rules an attempt
  had been made to compensate those who returned from
C the war if they compete in different services. The persons
  who joined the Army service after cessation of the foreign
  aggression and revocation of emergency cannot be
  treated like persons who have joined the Army during
  emergency due to foreign aggression and similar benefits
  cannot be given to such persons even by making rules.
D [Paras 8, 9) [920-D-F]

         Ex-Captain AS. Parmar and Others v. State of Haryana
    and Others 1986 (Supp) SCC 283; Union of India and Others
    etc. etc. v. Dr. S. Krishna Murthy and Others etc. etc. (1989)
E   4 SCC 689: 1989 (1) Suppl. SCR 275; Ohan Singh and
    others etc. etc. v. State of Haryana and others 1991 Supp (2)
    SCC 190: 1990 (3) Suppl. SCR 423; Ram Janam Singh etc.
    v. State of U.P. and Another etc. (1994) 2 sec 622: 1994 (1)
    SCR 316; Chittaranjan Singh Chima and Another v. State of
F   Punjab and others (1997) 11 SCC 447: 1997 (1) SCR 1010;
    State of Punjab and Others v. Harbhajan Singh and Another
    (2007) 12 SCC 549: 2007 (11) SCR 752; State of U.P. and
    another etc. etc. v. Dinkar Sinha (2007) 1o sec 548: 2007
    (6) SCR 305 - relied on.
G      2.1. Under Rule 3 of U.P. Non-technical (Class II)
  services (Reservation of Vacancies for Demobilised
  Officers) Rules, 1973, 10% of the permanent vacancies in
  all Non-Technical (Class-II) services were reserved for
  Emergency Commissioned Officers who joined the
H armed forces during the first emergency i.e. 1.11.1962 to
     RAJENDRA PRATAP SINGH YADAV v. STATE OF          913
                  U.P. AND ORS.

10.1.1968 and during the second emergency i.e. 3.12.1971     A
to 27.3.1977. Under Rule 1(2), these rules were to remain
in force only for a period of 5 years. Rule 6 provided for
seniority and pay and specifically provided that seniority
of the candidates appointed against the 10% vacancies
reserved under Rule 3 should be determined on the            B
assumption that they entered the service at their second
opportunity of competing of recruitment and they should
be assigne_d the same year of allotment as. successful
candidates of the relevant competitive examination.
Therefore, the benefit of the 1973 Rules cannot be           c
extended after these Rules ceased to exist on 5.8.1978
and to the persons whose appointment in the civil posts
was not under the vacancies reserved under Rule 3 of
the 1973 Rules. When the 1973 Rules lapsed in 1978 some
selections for the vacancies reserved under the 1973
                                                             0
Rules were concluded or the selection process was on
but the appointments could not be made. To regularize
the selection and appointment of these officers against
the vacancies. reserved under the 1973 Rules, a new set
of Rules i.e. 1980 Rules were promulgated on 19.8.1980
by the State Government. [Paras 21, 22) [923-G-H; 924-A-     E
D]
    Mahesh Chand and Others v. State of U.P. and Others
(2000) 10 SCC 492: 2010 (11) SCR 1051; Narendra Nath
Pandey and Others v. State of U.P. and others (1988) 3 sec   F
527: 1988 (1) Suppl. SCR 574 - referred to.
      2.2. The 1973 Rules ceased to exist after five years
 i.e. on 5.8.1978. The life of the Rules, according to the
judgment delivered in Di/bag Singh was extended upto
 1980. In any event, no one could be given benefit of 1973 G
 Rules after 1980. Admittedly, respondent No. 4 was
appointed in 1994 and the benefit could not have been
extended to respondent No.4. The 1973 Rules was a
temporary statute. It died its natural death on expiry
thereof. The 1980 Rules does not contain any repeal and H
    914     SUPREME COURT REPORTS              [2011] 7 S.C.R.


A   saving clause. The provisions of the relevant provisions
    of the General Clauses Act will, thus, have no application.
    Once a statute expires by efflux of time, the question of
    giving effect to a right arising thereunder may not arise.
    In any event, in this case, no such right accrued to the
s   respondent. Reservation to the extent of 2% might have
    been fixed by reason of a government order issued in the
    year 1977 but the same had nothing to do with the 1973
    Rules or with the 1980 Rules. Provision for. reservation
    made in general by the State in exercise of its executive
c   power could not have conferred a benefit in terms of the
    provisions of a rule which seeks to apply to a particular
    category of employees in the service. The 1980 Rules
    neither repealed nor replaced the 1973 Rules. The
    question of continuation of the 1973 Rules by the 1980
    Rules, thus, did not and could not arise. The 1980 Rules
0
    provided for a new set of rules. They were to have a
    limited application viz. regul:lrisation of appointment of
    Demobilised Officers. Consequently, persons who joined
    the Army after the emergency was over cannot also be
    given the benefit which was extended to those persons
E   who joined the Army during emergency. Those who
    joined the Army during the period of emergency virtually
    joined the war which was being fought by the nation. The
    differential treatment given to those who joined the Army
    during emergency cannot be termed as discriminatory
F   and arbitrary. [Paras 42-45] (930-B-H; 931-A-F]

        Di/bag Singh v. State of U.P. and others (1995) 4 sec
    495: 1995 (1) Suppl. SCR 38 - relied on.

      3. 'OS', a Short Service Commissioned Officer, who
G was appointed as Deputy Superintendent of Police
  against the 8% vacancies reserved under the
  Government Order dated 20.8.1977 made a
  representation claiming seniority under 1980 Rules. The
  State Government rejected his representation on
H
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                915
               U.P. AND ORS.

14.9.2000 saying that he was not selected and appointed         A
against the vacancies reserved under the 1973 Rules.
However, the High Court by its judgment dated 8.2.2002
allowed the prayer of 'OS'. Respondent No.4, after the
judgment of the High Court and after four years from the
date of publication of the final list, filed a representation   B
before the State Government that he be similarly placed
as 'OS' as he being assigned seniority of 1980 batch. The
State Government granted seniority to respondent No. 4
and he was given a jump of 181 places and the final
seniority list was disturbed by the State Government. The       c
appointment of respondent no.4 was not against the
vacancies reserved under the 1973 Rules, therefore, he
cannot get benefit of 1973 Rules. Respondent no.4 did
not join the armed forces during emergency and thus
stealing a march over 181 officers is not only contrary to
                                                                0
the Rules but is discretionary and arbitrary and violative
of Articles 14 and 16 of the Constitution. Respondent No.4
and similarly placed employees could not have been
given the benefit of the 1973 Rules. These Rules were not
in existence when they were appointed. Therefore, they
could not have derived any benefit from the 1973 Rules.         E
[Paras 31, 32, 49, 50] [927-0-G; 932-C-E]
    Rana Randhir Singh and others etc. etc. v. State of U. P.
and others 1989 Supp (1) SCC 615 - Distinguished.
                                                                F
     4. In service jurisprudence, there is immense sanctity
of a final seniority list. The seniority list once published
cannot be disturbed at the behest of person who chose
not to challenge it for four years. The sanctity of the·
seniority list must be maintained unless there are very G
compelli"g reasons to do so in order to do substantial
justice. This is imperative to avoid avoidable litigation and
unrest and chaos in the services. The respondent-State
of U.P. is directed to prepare a fresh seniority list and
place all three of them on their respective positions as
                                                                H
    916     SUPREME COURT REPORTS                 [2011) 7 S.C.R.


A   they had not received the benefit of 1973 seniority. There
    has been a considerable delay in this matter, therefore,
    the State of U.P. is directed to publish a fresh seniority
    list as expeditiously as possible, in any event within two
    months from the date of this judgment. [Paras 52- 54] (932-
8   G-H; 933-A-B]
                         Case Law Reference:
     1986 (Supp) sec 283           referred to     Para 13
     1989 (1) Suppl. SCR 275 referred to           Para 14
c
     1990 (3) Suppl. SCR 423 referred to           Para 15
     1994 (1) SCR 316              referred to     Para 16, 40
     1997 (1) SCR 1010             referred to     Para 17
D
     2007 (11) SCR 752             referred to     Para 18
     2007 (6) SCR 305              refetred to     Para 19, 29, 35,
                                                   43
     1995 (1) Suppl. SCR 38        relied on       Para 23, 33, 35,
E
                                                   42
     1989 Supp (1) SCC 615         distinguished      Para 27, 48
     2010 (11) SCR 1051            referred to     Para 33, 35
F    1988 (1) Suppl. SCR 574 referred to           Para 36

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4949 of 2011.

       From the Judgment & Order dated 25.1.2007 of the High
G Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
 . 55114 of 2004.

                                WITH

H   C.A. Nos. 4950, 4951-4953 & 4954-4956 of 2011.
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                     9,17
               U.P. AND ORS.
     Dinesh Dwivedi, Dr. Rajeev Dhawan, P.S. Patwalia, Shail          A
Kr. Dwivedi, AAG, D.K. Singh, Pradeep Shukla, (for Abhijit
Sengupta), P.N. Gupta, Manish S. Srivastava, Mukesh Sharma,
Asit Chaturvedi, Rajeev Dubey, Shekhar Kumar, Priyanka
Singh, Anurag Sharma (for AP & J Chambers), Upendra Nath
Mishra, Nikhil Majithia, Vandana Mishra, Manoj Kr. Dwivedi (for       B
Gunnam Venkateswara Rao), Upendra Nath Mishra, Shrish
Kumar Misra, Jitendra Mohan Sharma, Dr. Sandeep Singh,
Sonia Mathur, Vijay K. Jain for the appearing parties.

     The Judgment of the Court was delivered by
                                                                      c
    DALVEER BHANDARI, J. 1. Leave granted in all the
Special Leave Petitions.

      2. Since common questions of law arise in all these
appeals, therefore, these appeals are being disposed of by a. __ D
common judgment. The facts of Civil Appeal No. 4949 of 2011
arising out of Special Leave Petition (Civil) No.5098 of 2007
entitled Rajendra Pratap Singh Yadav & Others v. State of
U.P. & Others are recapitulated for the sake of convenience.

       3. The appellants and respondent No.4 - Rakesh Kumar           E
 Jolly are direct recruits to the Uttar Pradesh Provincial Police
 Service. It is stated that the appellants are 4 to 10 years senior
 to respondent No. 4, who was selected and appointed in the
 year 1994 as Deputy Superintendent of Police in Uttar Prade.sh
 Provincial Police Service. Respondent No.4 was given benefit         F
 o.f his past service in the Indian Army as a Short Service
 Commissioned Officer of eight years vide order dated
29.11.2004 issued by the State Government. Since respondent
No.4, though junior was placed above the appellants, therefore,
the appellants filed a writ petition before the High Court of         G
judicature at Allahabad.

    4. According to the appellants, respondent No.4 could not
have been given the benefit of past service. The benefit of back
seniority was given to respondent No.4 under the U.P. Non-            H
    918         SUPREME COURT REPORTS              (2011] 7 S.C.R.


A   technical (Class~ll/Group 'B') Services (Appointment of
    Demobilised Officers) Rules, 1980, as amended in 1990.
    Demobilised Officer has been defined in Rule 3(b) of the
    Demobilisation Rules, 1980, which reads as under:

          "3.     Definitions - In these rules unless the context
B
                  otherwise requires -

          (a)

          (b)     "Demobilised Officer" means Disabled Defence
c                 Service Officer, Emergency Commissioned Officer
                  and the Short Service Commissioned Officer of the
                  Armed Forces of the Union who was
                  commissioned on or after November 1, 1962 but
                  before January 10, 1968 or on or after December
D                 3, 1971 and released at any time thereafter.
                              n
          (c)

      5. Respondent No.4 joined the Indian Army in 1981 and
  was discharged from the Army in 1986. He was a Short Service
E Commissioned Officer. The appellants raised the following
  questions in this case.

          (1)     Whether a Short Service Commissioned Officer
                  who was commissioned in the Army during the
F                 normal period is entitled to the certain benefits
                  given to the Army officers who were commissioned
                  during the emergency when the nation was at waF
                  with the foreign enemy.

          (2)     Whether a demobilized Short Service
G                 Commissioned Officer who was commissioned in
                  the army during normal period and whose selection
                  in the civil post is not against the vacancies
                  reserved for demobilized officers under U.P. Non-

H
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                 919
     U.P. AND ORS. [DALVEER BHANDARI, J.]

           Technical (class-II) Services (Reservation of A
           Vacancies for Demobilised Officers) Rules, 1973
           (hereinafter referred to as "1973 Rules") is entitled
           to seniority under the Uttar Pradesh non-technical
           (Class 11/Group-B) Services (Appointment of
           Demobilised Officers) Rules, 1980 (hereinafter B
           referred to as "1980 Rules")?

     (3)   Whether a demobilized Short Service
           Commissioned Officer who is not selected for
           appointment to a non-technical Class-11/Group-B C
           service or post against the vacancies reserved for
           demobilised officers, as a result of recruitment, the
           process of which was concluded or commenced
           prior to 6th August, 1978, in accordance with the
           provisions of 1973 Rules is entitled to seniority and
           pay as meant for the persons appointed against the D
           vacancies reserved under the 1973 Rules?

     (4)   Whether when a Short Service Commissioned
           Officer who has been selected and appointed
           against the vacancies reserved for such officers       E
           under the Government Order of 1977 which does
           not contemplate any seniority for the past services
           rendered in the Army, is entitled to seniority under
           the 1980 Rules?

     (5)   When the order of appointment itself provides that     F
           the seniority of the selected Short Service
           Commissioned Officer shall be determined
           according to the Uttar Pradesh Police Service
           Rules, 1942, can the Government dehors the terms
           of the appointment order grant him seniority of 8      G
           years because he happened to be a Short Service
           Commissioned Officer?

   6. The main argument articulated by the appellants is
whether a Short Service Commissioned Officer who was              H
    920      SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A   commissioned in the Army during the normal period is entitled
    to the certain benefits given to the Army officers who were
    commissioned during the emergency when the nation was at
    war with the foreign enemy.

          7. It was submitted before the High Court that the person
8
    who had joined the Army after declaration of emergency due
    to foreign aggression and those who joined after the war came
    to an end stand on an entirely different footing. Those who
    joined the Army after revocation of emergency joined the Army
C   as a career and belong to different class distinct from those
    who had joined the Army during war and emergency.

          8. It is well known that many persons who joined the Army
    service during the foreign aggression could have opted for other
    career or other softer career or service but the nation itself
D   being under peril, impelled by the spirit to serve the nation, they
    opted forjoining the Army where the risk was little more. Such
    persons formed a class by themselves and by framing Rules
    an attempt had been made to compensate those who returned
    from the war if they compete in different services.
E
         9. The persons who joined the Army service after cessation
    of the foreign aggression and revocation of emergency cannot
    be treated like persons who have joined the Army during
    emergency due to foreign aggression and similar benefits
    cannot be given to such persons even by making rules.
F
         10. The appellants also submitted that whenever any
    particular period is spent in any service by a person is added
    to the service to which such person joined later; it is bound to
    affect the seniority of persons who have already entered in the
G   service. As such, any period of earlier service shouh;1 be taken
    into account for determination of seniority in the latter service
    only for special or compelling· reasons, which stand test of
    reasonableness and on examination, can be held to be free
    from arbitrariness. Therefore, the decision of the Government
H   of India to give seniority to respondent No.4, who did not join
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                    921
     U.P. AND ORS. [DALVEER BHANDARI, J.]
the armed forces during emergency and thus stealing a march          A
over 181 officers is not only contrary to the Rules but is
discriminatory and arbitrary and violative of Articles 14 and 16
of the Constitution of India.

     11. According to the appellants, the High Court in the          8
impugned judgment did not appreciate the controversy involved
in t_he case in proper perspective and dismissed the writ
petition. The appellants aggrieved by the said judgment of the
High Court filed these appeals l;>efore this court.

    12. The appellants placed reliance on a number of C
judgments of this Court to strengthen their submissions. ·

    13. In Ex-Captain A. S. Parmar and Others v. State of
Haryana and Others 1986 (Supp) SCC 283 this court held that
the seniority of the Military Service rendered by the Armed . D
Forces Personnel who joined the Military Service during
emergency would only be counted for the purpose of seniority
in the civil service and the Military Service rendered
subsequent to the lifting of emergency cannot be taken into
account for the purpose of reckoning the seniority in the civil E
post.

    14. In Union of India and Others etc. etc. v. Dr. S. Krishna
Murthy and Others etc. etc. (1989) 4 sec 689 this court
 observed that the persons who had joined the armed forces
 after the declaration of the emergency at the time when the         F
 security of the nation was in peril due to external aggression
.had voluntarily offered their services for the defence of the
 country. They belong to a separate class and there is no
 question of discrimination in giving the benefits of seniority to
 them in the civil services by framing Rules.                        G

     15. This court in Ohan Singh and others etc. etc. v. State
of Haryana and others 1991 Supp (2) SCC 190 specifically
held that the young persons who had joined the military service
during emergency and those who were already in the service           H
    922      SUPREME COURT REPORTS                  [2011) 7 S.C.R.


A   and due to exigency of the service had been compelled to serve
    during the emergency form two distinct classes. Those who
    joined the Army before the proclamation of the emergency had
    chosen the career voluntarily and their services during
    emergency were a matter of course. The person who got
B   enrolled or commissioned during the emergency, on the other
    hand, on account of the call of the nation joined the Army at that
    critical juncture of national emergency to save the motherland
    by taking a greater risk where danger to life of a member of
    the armed forces was higher. They include persons who could
c   have pursued their studies, acquired higher qualifications and
    could join a higher post and those who could have joined the
    government service before attaining the maximum age
    prescribed and thereby gained seniority in the service.
    Foregoing all these benefits and avenues, they joined the Army
    keeping in view the needs of the country and assurances
0
    contained in conditions of service in executive instructions. The
    latter formed a class by themselves and they cannot be equated
    with those, who joined the Army before proclamation of the
    emergency.

E         16. In Ram Janam Singh etc. v. State of U.P. and Another
    etc. (1994) 2 SCC 622, this court while interpreting U.P. 1968
    Rules, 1973 Rules and 1980 Rules, specifically held that the
    persons who had joined the Army after declaration of the
    emergency due to foreign aggression and those who joined
F   after the war cannot stand on the same footing. Those who
    joined the Army after revocation of emergency, joined the Army
    as a career. This court specifically rejected the plea in para 14
    to treat the persons who joined the Army service after cessation
    of foreign aggression and revocation of emergency to be
G   treated alike the persons who had joined Army service during
    emergency due to foreign aggression. It was also held that any
    period of earlier service should be taken into account for
    determination of seniority for some very compelling reasons,
    which stand the test of reasonableness and on examination can
H   be held free from arbitrariness.
   RAJENDRA PRATAP SINGH YADAV v. STATE OF                 923
      U.P. AND ORS. [DALVEER BHANDARI, J.]

       17. In Chittaranjan Singh Chima and Another v. State of A
 Punjab and others (1997) 11sec447 this court while relying
 on the judgment in the case of.Ram Janam Singh (supra) held
 that the preferential treatment could be given only to those who
 joined armed forces during emergency and grant of notional
 seniority in the civil services by taking into account service B
 rendered in the arm~d forces cannot be extended to those who
 joined armed forces during normal times.

       18. This court in State of Punjab and Others v. Harbhajan
  Singh and. Another (2007) 12 sec 549, while relying on
· judgment in the case of Ram Janam Singh (supra) held that C
  the military service can be counted only if the person has joined
  during the emergency and not otherwise.

       19. In State of U.P. and another etc. etc. v. Dinkar Sinha·
  (2007) 1O sec 548, this court specifically placed reliance on D
  the judgment in Ram Jam Singh's case (supra) and held that
  a person, who joined the Army after the cessation of emergency
  cannot be given benefit of seniority of the services rendered in
 the Army after selection in the civil services.
                                                                   E
       20. The appellants also submitted that a demobilized Short
  Service Commissioned officer who was commissioned in the
· Army during the normal period and whose selection in the civil
  post is against the vacancies reserved for demobilized officers
  under the 1973 Rules is not entitled to seniority under the 1980 F
  Rules.

      21. Under Rule 3 of 1973 Rules, 10% of the permanent
 vacancies in all Non-Technical (Class-II) services were reserved
 for Emergency Commissioned Officers who joined the armed
 forces during the first emergency i.e. 1.11.1962 to 10.1.1968 G
 and during the second emergency i.e. 3.12.1971 to 27.3.1977.
 Under Rule 1(2), these rules were to remain in force only for a
 period of 5 years. Rule 6 provided for seniority and pay and
 specifically provided that seniority of the candidates appointed
 against the 10% vacancies reserved under Rule 3 should be H.
    924     SUPREME COURT REPORTS                  (2011] 7 S.C.R.


A   determined on the assumption that they entered the service at
    their second opportunity of competing of recruitment and they
    should be assigned the same year of allotment as successful
    candidates of the relevant competitive examination. Therefore,
    the benefit of the 1973 Rules cannot be extended after these
B   Rules ceased to exist on 5.8.1978 and to the persons whose
    appointment in the civil posts was not under the vacancies
    reserved under Rule 3 of the 1973 Rules.

         22. When the 1973 Rules lapsed in 1978 some selections
    for the vacancies· reserved under the 1973 Rules were
C   concluded or the selection process was on but the
    appointments could not be made. To regularize the selection
    and appointment of these officers against the vacancies
    reserved under the 1973 Rules, a new set of Rules i.e. 1980
    Rules were promulgated on 19.8.1980 by the State
D   Government.

         23. The appellants submitted that only Rules governing
    reservation is 1973 Rules, which Cf.ased to exist after five
    years, i.e., on 5.8.1978. The appellants also submitted that no
E   one could be given the benefit of 1973 Rules after 5.8.1978.
    The appellants further submitted that in Di/bag Singh v. State
    of U.P. and others (1995) 4 sec 495 this court observed that
    1973 Rules must be deemed to be in operation till 1980.

         24. According to the appellants this is not the correct
F   position of law, but in any event no one could derive any benefit
    after 1980. Respondent No.4 admittedly joined service much
    after 1980 and could not have been extended the benefit of the
    Rules.

G        25. According to the appellants, 1980 Rules do not deal
    with reservation. They are only Rules for appointment. The
    appellants also submitted that under 1980 Rules there is no
    provision with respect to reservation of vacancies to the
    demobilized officers of armed forces of the Union. These Rules
H   are not replacement of 1973 Rules as generally misunderstood
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                   925
     U.P. AND ORS. [DALVEER BHANDARI, J.]

and these rules are a new set of rules for the purpose of A
regularising appointments of demobilized officers whose
selection process had commenced or concluded under the
1973 Rules but appointments were not made before expiry of
the 1973 Rules i.e. 6.8.1978. Nomenclature of the 1980 Rules
is different from the 1973 Rules which explain the purpose of B
these rules. The 1973 Rules provide for reservation of
vacancies for the demobilized officers, whereas 1980 Rules
provide for appointment of demobilized officers whose process
of selection as per the 1973 Rules either got completed or
commenced but appointments were not made before the expiry c
of the said 1973 Rules. The 1980 Rules have been given
retrospective effect with effect from 6.8.1978 to regularize the
appointment of the demobilized officers whose selection
process was concluded or commenced before 6.8.1978
otherwise appointment orders of those officers after 6.8.1978 D
to 19.8.1980 would have been invalid who were given benefit
of 1973 Rules. Rule 4 of the 1980 Rules prescribes a cut-off
date which provides that benefits of the Rules shall be available
only against the vacancies reserved for demobilized officers
under 1973 Rules whose.process of recruitment commenced
or was completed prior to the 6.8.1978 when the 1973 Rules E
had lapsed. Therefore, a demobilized officer, whose selection
was not against the vacancies reserved under the 1973 Rules
and his process of selection started after 6.8.1978, by no
stretch of imagination, is entitled to the seniority under the 1980
 Rules.                                                             F

      26. The appellants also submitted that it is not in dispute
that respondent No. 4 was appointed in the year 1994 against
the 8% vacancies reserved under the Government Order dated
20.8.1977, which provides reservation to other categories of G
persons as well. There is no provision in the Government Order
for granting seniority to a Short Service Commissioned officer
for his past military service, who was appointed against the 8%
vacancies reserved for the armed forces personnel as
mentioned in the Government Order. Since the appointment of H .
    926      SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A   respondent No.4 in the U.P. Police Service in the year 1994
    was not against the vacancies reserved under the 1973 Rules,
    he could not have been granted seniority of eight years by the
    State Government.

         27. In the case of Rana Randhir Singh and others etc.
B
    etc. v. State of U.P. and others 1989 Supp (1) sec 615 this
    Court has specifically held that the seniority of the officers
    appointed in the U.P. Police Service after 1980 shall be
    determined in accordance with the provisions of Rule 21 of the
    U.P. Police Service Rules, 1942. Therefore, the respondent
C   could not have been assigned seniority of eight years only
    because he happened to be a Short Service Commissioned
    Officer.

        28. In reply to question No. 5 i.e. "when the order of
D appointment itself provides that the seniority of the selected
   Short Service Commissioned Officer shall be determined
   according to the Uttar Pradesh Police Service Rules, 1942,
   can the Government dehors the terms of the appointment
   order grant him seniority of 8 years because he happened to
E be a Short Service Commissioned Officer'; the appellants
   submitted that it is trite law that the service conditions
   mentioned in the order of appointments are bindirig on the
 • employee and employer alike if the same are not against the
   statutory rules governing the service conditions or public policy
F or the provisions of the Constitution of India. The appointment
   order of respondent No. 4 specifically mentions that the seniority
   of respondent No.4and other officers selected shall be
   determined in accordance with the U.P. Police Service Rules,
   1942. It is also submitted that having accepted this service
G condition as mentioned in the appointment order, the claim of
   respondent No.4 for grant of eight years seniority as he was
   Short Service Commissioned Officer could not have been
   allowed.

         29. In Dinkar Sinha (supra) the controversy has been set
H   at rest where this court has categorically held that a person
 RAJENDRA PRATAP SINGH YADAV v. STATE OF                    927
    U.P. AND ORS. [DALVEER BHANDARI, J.]

whose appointment in the civil/police service is not against the A
vacancies reserved under the 1973 Rules cannot claim seniority
under the 1980 Rules.

      30. The appellants also submitted that the final seniority
list of the officers of the U. P. Police Service was published on
                                                                    8
1.2.2000 and respondent No. 4 was placed at SI. No. 340. He
was satisfied and felt contended with his placement in the
seniority list. Once the seniority list was finalized and no
representation was made by respondent No.4 for years,
therefore, it ought not to have been disturbed. The final seniority C
list should not be disturbed or tinkered with unless it becomes
imperative in the larger interest of justice.

      31. It may be pertinent to mention that Dinkar Sinha. a Short
Service Commissioned Officer, who was appointed as Deputy
Superintendent of Police against the 8% vacancies reserved D
under the Government Order dated 20.8.1977 made a
representation claiming.seniority under 1980 Rules. The State.
Government rejected his representation on 14.9.2000 saying
that he was not selected and appointed against the vacancies
reserved under the 1973 Rules. However, the High Court vide E
its judgment dated 8.2.2002 allowed the prayer of Dinkar Sinha.

     32. Respondent No.4, after the said judgment by the High
Court and after four years from the date of publication of the
final seniority list, filed a representation before the State
Government that he was similarly placed· as Dinkar Sinha and F
he should be assigned seniority of 1980 batch. The State
Government rejected the representation of Dinkar Sinha but
obliged respondent No. 4 and vide order dated 29.11.2004
granted him seniority of 1982 batch and thus, he was given a
jump of 181 places. According to the appellants, the long drawn G
seniority should not have been disturbed after so many years.

    33. It may also be pertinent mention here that Di/bag
Singh's (supra) case was approved in Mahesh Chand and
Others v. State of U.P. and Others (2000) 10 SCC 492. .   H
    928     SUPREME COURT REPORTS                 (2011) 7 S.C.R.


A        34. The main submission of the learned counsel for the
    State of U.P. has been that individuals who were appointed
    under the 10% vacancies are not entitled for the benefit. He
    placed reliance on advertisement and the appointment letter of
    all the three respondents who got the benefit but their
B   appointments were not made against 10% vacancies.

          35. Dr. Rajiv Dhawan, learned senior counsel appearing
    in Civil Appeals No.4954 - 4956 of 2011 arising out of Special
    Leave Petition {Civil) Nos.26022-26024 of 2008 entitled
    'Rajendra Singh v. Madhukar Dwivedi and Others', submitted
C that Di/bag Singh (supra) has been approved in Mahesh
    Chand (supra), which is a three Judges Bench judgment and
    binding on this court. He submitted that even the State of U.P.
    till 2007 has prepared all lists according to the judgment of
    Mahesh Chand's (supra) case. He further submitted that
D Dinkar Sinha's (supra) judgment is delivered by two judges and
  . they were bound by the judgment of Mahesh Chand (supra)
    and they could not have taken a contrary view.

         36. Dr. Dhawan also placed reliance on the judgment of
E   this court in the case of Narendra Nath Pandey and Others v.
    State of U.P. and others (1988) 3 sec 527. He submitted that
    despite Rules, the executive has the power to grant reservation
    by an executive order.

         37. Mr. Dinesh Dwivedi, learned senior counsel appearing
F ·in Civil Appeals No.4951 - 4953 of 2011 arising out of Special
   Leave Petition {Civil) Nos. 25949-25951 of 2008 entitled
   'Sudhir Kumar v. Sri Madhukar Dwivedi etc.' submitted that
   Sudhir Kumar had joined the Army on 17.5.1976. On 19.3.1977
   appellant was commissioned as a Short Service
G Commissioned Officer. On 12.5.1982 he was released from
   the Army services. In the year 1984 he appeared in Provincial
   Civil Services {Executive) Examination in Uttar Pradesh and
   passed in the year 1984. On 7.7.1986 the appellant joined
   State Civil Services as Deputy Collector. He was confirmed in
H the batch of 1985 for the purpose of seniority. On 25.6.1994,
    RAJENDRA PRATAP SINGH YADAV v. STATE OF                  929
       U.P. AND ORS. [DALVEER BHANDARI, J.)

 Sudhir Kumar made a representation to the State Government          A
 to accord seniority to him at proper place and the batch in
 gradation list following the decisions of this court as accorded
 to .other similarly situated. demobilized officers by the State
 Government. Vide order· dated 13.3.2003, the State
 Government decided the seniority of the appellant and fixed his     B
 name below the name of Santosh Kumar Dwivedi of 1976
 batch and above Vined Kumar Singh of 1977 batch.

        38. The appellant being aggrieved by the judgment dated
  30.9.2008 delivered by the High Court of judicature at
  Allahabad, Lucknow Bench in Writ Petition No.494 (S/B) of          C
  2003 entitled Madhukar Dwivedi v. State of U.P., Writ Petition
  No. 504 (S/B) of 2003 entitled Arvind Narain Mishra and
  Another v. State of U.P. and others and Writ Petition No. 1083
  (SIB) of 2004 entitled Har Charan Prakash v. State of U.P. filed
  Civil Appeals No.4951 ..;. 4953 of 2011 arising out of Special     D
  Leave Petition (Civil) Nos. 25949-25951 of 2008 in this Court.

        39. According to Mr. Dwivedi the appellant was
    commissioned as a Short Service Commissioned Officer on
  / 19.3.1977 during the period when the emergencywasinvoked         E
.i and he ought to have been given the benefit of 1973 Rules. He
 · cannot be denied the benefit on the ground that he was not
    appointed under the 10% vacancy quota or 1973 Rules.

       40. Mr. Dwivedi placed reliance on Ram Janam Singh
  (supra) and particularly laid stress on para 12 of the judgment    F
  which reads as under:

      "... . .. . .. we fail to understand as to how persons who
      joined after the emergency was over i.e. after January 10,
      1968 and before December 3, 1971 when another                  G
      emergency was imposed in view of the foreign aggression,
      can be treated on a par or on the same level. It need not
      be pointed out that such persons were on the lookout for
      a career and joined the Armed Forces of their own volition.
      It can be presumed that they were prepared for the normal      H
    930       SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A         risk in the service of the Armed Forces. Those who joined
          Armed Forces after November 1, 1962 or December 3,
          1971, not only joined Armed Forces but joined a war which
          was being fought by the nation. If the benefits extended to
          such persons who were commissioned during national
B         emergencies are extended even to the members of the
          Armed Forces who joined during normal times, members
          of the Civil Services can make legitimate grievance that
          their seniority is being affected by persons recruited to the
          service after they had entered in the said service without
c         there being any rational basis for the same."

        41. We have carefully gone through the pleadings of these
    appeals and perused relevant judgments delivered by this court.

       42. The 1973 Rules ceased to exist after five years i.e. on
D 5.8.1978. The life of the Rules, according to the judgment
  delivered in Di/bag Singh (Supra) was extended upto 1980.
  In any event, no one could be given benefit of 1973 Rules after
  1980. Admittedly, respondent No. 4 was appointed in 1994 and
  the benefit could not have been extended to respondent No.4.
E
        43. Same Rules came up for consideration in Dinkar
    Sinha's case (supra) wherein the Court observed as under:

          "31. The 1973 Rules was a temporary statute. It died its
          natural death on expiry thereof. The 1980 Rules does not
F         contain any repeal and saving clause. The provisions of
          the relevant provisions of the General Clauses Act will, thus,
          have no application. Once a statute expires by efflux of
          time, the question of giving effect to a right arising
          thereunder may not arise. In any event, in this case, no such
G         right accrued to the respondent. Reservation to the extent
          of 2% might have been fixed by reason of a government
          order issued in the year 1977 but the same had nothing
          to do with the 1973 Rules or with the 1980 Rules. Provision
          for reservation made in general by the State in exercise
H         of its executive power could not h;:1ve conferred a benefit
 RAJENDRA PRATAP SINGH YADAV v. STATE OF                       931
    U.P. AND ORS. [DALVEER BHANDARI, J.]

    in terms of the provisions of a rule which seeks to apply          A
    to a particular category of employees in the service.

          32. The 1980 Rules neither repealed nor replaced
    the 1973 Rules. The question of continuation of the 1973
    Rules by the 1980 Rules, thus, did not and could not arise.        8
    The 1980 Rules provided for a new set of rules. They were
    to have a limited application viz. regularisation of
    appointment of Demobilised Officers."

     44. Consequently, persons who joined the Army after the
emergency was over cannot also be given the benefit which was          C
extended to those persons who joined the Army during
emergency. Those who joined the Army during the period of
emergency virtually joined the war which was being fought by
the nation. The benefit extended to such persons cannot be
extended to the members of the armed forces who had joined             D
the Army during normal periods.

     45. Persons who have joined the Army during the foreign
aggression could have opted for other career or softer career
or service but the nation itself being under peril, .impelled by       E
the spirit to serve the nation, they opted for joining the Army
where the risk was much more. Such persons formed a class
by themselves and the benefit extended to them cannot be
extended to the persons who joined the Army during the normal
times. The differential treatment given to those who joined the
Army during emergency cannot be termed as discriminatory               F
and arbitrary.

      46. Respondent No.4, after the judgment of the High Court
and after four years from the date of publication of the final list,
filed a representation before the State Government that he be          G
similarly placed as Dinkar Sinha as he being assigned seniority
of 1980 batch. The State Government granted seniority to
respondent No. 4 and he was given a jump of 181 places and
the final seniority list was disturbed by the State.
                                                                       H
     932      SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A        47. The appointment of respondent no.4 was not against
     the vacancies reserved under the 1973 Rules, therefore, he
     cannot get benefit of 1973 Rules.

          48. In Rana Randhir Singh's case (supra), this Court
     clearly held that the seniority of the officers appointed in the
8
     U.P. Police Service after 1980 shall be determined in
     accordance with the provisions of Rule 21 of the U.P. Police
     Service Rules, 1942. Respondent no.4 was appointed in 1994,
     therefore, the 1942 Rules would be applicable to him as the
     said Rules are still in force.
c
           49. Respondent no.4 did not join the armed forces during
      emergency and thus stealing a march over 181 officers is not
    . only contrary to the· Rules but is discretionary and arbitrary and
      violative of Articles 14 and 16 of the Constitution.
D
       50. We are clearly of the view that respondent No.4 and
  similarly placed employees could not have been given the
  benefit of the 1973 Rules. These Rules were not in existence
  when they were appointed. Therefore, they could not have
E derived any benefit from the 1973 Rules.

          51. Consequently, we are constrained to set aside the
     impugned judgment of the High Court. We have no hesitation
     in holding that respondent No.4 - Rakesh Kumar Jolly, Rajendra
     Singh and Sudhir Kumar were wrongly given the benefit of the
F    1973 Rules.                                     ·

       52. We deem it appropriate to reiterate that in service
  jurisprudence there is immense sanctity of a final seniority list.
  The seniority list once published cannot be disturbed at the
G behest of person who chose not to challenge it for four years.
  The sanctity of the seniority list must be maintained unless there
  are very compelling reasons to do so in order to do substantial
  justice. This is imperative to avoi~ avoidable litigation and
   unrest and chaos in the services.

H          53. We, therefore, direct the respondent-State of U.P. to
  RAJENDRA PRATAP SINGH YADAV v. STATE OF                       933
     U.P. AND ORS. [DALVEER BHANDARI, J.]

prepare a fresh seniority list and. place all three of them on their   A
respective positions as they had not received the benefit of
1973 seniority.        ·

      54. There has been a considerable delay in this matter,
therefore, we c!irect the State of U.P. to publish a fresh seniority   B
list as expeditiously as possible, in any event within two months
frorri the date of this judgment.

      55. In the facts and circumstances of this case we make
it clear that the financial benefits which have already been
extended to respondent No. 4 - Rakesh Kumar Jolly, Rajendra            C
Singh and Sudhir Kumar may not be recovered from them.

     56. These appeals are accordingly disposed of in terms
of the aforesaid directions. In the facts and circumstances of
the case, the parties are left to bear their own costs. ·              o
D.G.                                       Appeals disposed of.