SANJAY K. SINHA-II AND ORS.versusSTATE OF BIHAR AND ORS.

A                      SANJA Y K. SINHA-II AND ORS.
                                        v.
                         STATE OF BIHAR AND ORS.

                                 MAY 31, 2004
B
                [BRIJESH KUMAR AND ARUN KUMAR, JJ.]

         Service Law :

         Bihar Forest Service Rules-Ru/es 3 and 35-Post of Assistant
C Conservators of Forests-Direct Recruits and promotees-lnter se
  seniority-Determination of-Posts to be filled by 50% direct recruits and
  50% promotees-Candidate appointed to substantive posts by direct
  recruitment-Appointment of candidates from feeder posts against non-
  existing posts du~ing the relevant period-Thereafter, appointment order
D ofdirect recruits issued-Final seniority list issued showing direct recruits
  junior to promotees-Validity of-Held: Appointments made contrary to
  the rules are merely fortuitous and do no confer benefit of seniority on
  appointees over and above the regular/substantive appointees to the
  service-On facts, substantive posts not being available and promotion
E being made against non-existing post, there could be no appointment in
   service and as such promotees could not be given seniority with effect from
   the purported date of their promotion over and above the direct recruits-
   Hence, final seniority list quashed-Also the direct recruits cannot be non-
   suited on the ground of delay in challenging the promotion order of
F promotees.

         In the State Forest Service, 50% posts of Assistant Conservators
    of Forests (ACFs) were to be filled by promotion and the other 50%
    by direct recruitment. Appellants were appointed as ACFs by direct
    recruitment. The process of direct recruitment was completed by
G   8.6.1987 but the notification regarding appointment was issued on
    14.12.1987. Meanwhile, on 20.6.1987 the Departmental Promotion
    Committee was constituted to consider promotion from feeder posts
    and promotees were appointed to the posts of ACFs by notifications
    dated 6.10.1987 and 23.ll.1987. It was the appellant's case that as per
H   the notification of 12.8.1987, at the relevant time the cadre strength of
                                        834
                         S.K. SINHA v. STATE                        835

the post of ACF was only 172 and the promotees were already A
occupying more than 50% posts. Thereafter, in 1989 final seniority list
was issued showing the appellants who are direct recruits as juniors
to the promotees. Appellants filed writ petition challenging the final
seniority list; High Court dismissed the same on 3.4.1996. High Court
again dismissed the writ petition on merits on 13.7.1998, after the B
remand order was passed by this Court. It rejected the case of the
appellant challenging the promotions of the promotees. Meanwhile, on
9.2.1996 another Division Bench of High Court quashed the notifications
of 6.10.1987 and 23.11.1987 and also the final seniority list. State
Government was permitted to issue fresh notification with regard to C
the appointments of promotees but there was delay and, as such the
promotees filed contempt application. The notification was ultimately
issued on 15.7.2002 stating that the promotees could be appointed with
effect from the date mentioned against their names, which is 20.6.19.87.

       In appeal to this Court, appellant - direct recruits contended that D
the posts of ACF were not available in the year 1987 for appointment
of the promotees without first restoring the balance in the service but
still respondents went ahead with appointments; and that the notification
of 12.8.1987 is a resolution which only determines the cadre strength
and is a decision which remains to be implemented.                         E
     Allowing the appeal, the Court

      HELD: 1. Rule 35 of the Bihar Forest Service Rules provides that
seniority of officers appointed to the service is to be determined with F
reference to the date of their substantive appointment. In order to
become a member of the service the person concerned has to satisfy
that the appointment must be in substantive capacity and has to be to
the post in the service according to the rules and within the quota to
a substantive vacancy. Further, it is settled law that the appointments
made contrary to the rules are merely fortuitous and do no confer G
benefit of seniority on the appointees over and above the regular/
substantive appointees to the service. (845-B-C; 847-B-C)

    C.K Antony v. B. Muraleedharan and Others, [1998) 6 SCC 630;
MS.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and H
    836               SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Others v. State ofMaharashtra and Others, f1996( ll sec 361 and State
    ofMaharashtra and Another A. W. Dhope and Others v. Sanjay Thakre and
    Others, (1995] Supp. 2 SCC 407, relied on.

          Keshav Chandra Joshi and Others v. Union of India and Others,
B (1992] Supp. I sec 272, referred to.
        2.1. Notification dated 12.8.1987 is in the form of a resolution.
  Heading of the resolution 'Determination of cadre strength of Bihar
  Forest Service' suggests that it is merely a determination of the cadre
C strength of the post of ACF. Determination is a decision as to what should
  be the cadre strength which needs to be implemented by creation of
  posts. Resolution cannot be said to be creating the posts. There is lot of
  difference between determination of cadre strength and creation of posts.
  For creation of posts certain formalities have to be gone through. Nothing
  has been shown to suggest that requisite formalities regarding creation
D of posts had taken place. [842-G-H; 843-A-Bf

          2.2 It is clear from the admissions made on behalf of the
    respondent-State Government by way of affidavits filed in judicial
    proceedings that as sufficient number of posts of ACFs for promotion
E   of the promotees in the year 1987 had not been created and as such
    there was non-availability of posts when the promotees were promoted
    as ACFs, rather the promotions were made against non-existing posts.
    When the posts were not available at all the question as to whether the
    posts were falling within the quota of the promotees does not arise. The
F   relevant information supporting the records with regard to the number
    of posts which are available, were not placed before the court. The
    record position is found from the affidavit of the Commissioner filed
    sometime in year 1998 from which it is clear that even till the date of
    filing of the affidavit sufficient number of posts had not been created
    by the State Government. Notification regarding appointment of
G   promotees was issued on 15.7.2002 during the pendency of the present
    proceedings. This shows that the posts of ACFs might have been
    created by the State Government subsequently. While issuing the
    notification dated 15.7.2002, State Government could not ignore or
    prejudic officers like the appellants who were substantively appointed
H   to the service w.e.f. 14.12.1987 i.e. about fifteen years prior to the
                          S.K. SINHA v. STATE                         837

issuance oi' the notification. (846-E-F; 847-D-Hl                           A
      2.3. The appointments of the promotees made between June and
November, 1987 to the posts of ACFs cannot be termed as substantive
appointments to the service since the posts to which substantive
appointments were to be made were not available, therefore, there could B
be no appointment to the service and when there is no appointment to
the service, much less substantive appointment to the service, it cannot
confer any benefit of seniority on the promotees with effect from the
purported date of their promotion over and above the appellants who
were directly appointed to the service by notification of14.2.1987. Hence,
the final seniority list of24. 7. 1989 is quashed and State Government is C
directed to issue fresh seniority list fixing the seniority of appellants over
the promotees. Furthermore, the State Government may regularize the
appointment of the promotees but they cannot be given seniority over
the appellants. (845-D-E; 847-A-B; 848-A-B)
                                                                            D
      3. Appellant - direct recruits cannot be non-suited on the ground
of delay in challenging the orders of the promotion of the promotees.
Another Division Bench of High Court quashed the two notifications
with regard to the appointment of promotees to the posts of Assistant
Conservator of Forests (ACF) and also the final seniority list and E
permitted the State Government to issue fresh notification with regard
to the appointments of promotees. On 3.4.1996 when the present writ
petition challenging the final seniority lists showing appellants who are
direct recruits as junior to promotees was earlier dismissed and again
on 13.7.1998 when it was again dismissed by High Court after the
remand order passed by this Court, there was no notification in F
existence regarding appointments of the promotees. The fresh
notification was issued only on 15.7.2002. [839-F-H; 840-A-BI

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6565 oi
1999.
                                                                            G
     From the Judgment and Order dated 13.7.98 of the Patna High Court
in Civil Writ Jurisdiction Case No. 8305 of 1989.

    Gopal Subramaniam, Ajit Kumar Sinha and Pankaj Bhagast for the
Appellants.                                                        H
    838                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A       S.B. Sanyal, Rudeshwar Singh, Shishir Pinaki, R.P. Wadhwani,
    Kumar Rajesh Singh, B.B. Singh, Anurag and Navin Prakash for the
    Respondents.

          The Judgment of the Court was delivered by

B
          ARUN KUMAR, J. : This appeal is directed against a judgment
  dated 13th July, 1998 of a Division Bench of the High Court dismissing
  a writ petition filed by the appellants herein challenging a final seniority
  list issued by the State Government of Bihar whereunder the appellants
C who are direct recruits to the Bihar Forest Service were shown junior to
  the private respondents who are promotees in the service. The appellants
  were appointed as Assistant Conservators of Forests (ACFs) to the Bihar
  Forest Service (hereinafter called the 'service') as direct recruits in
  pursuance of advertisement issued by the Bihar Public Service Commission
  on 24th July, 1985 tor filling 40 permanent posts of Assistant Conservators
D of Forests in the Service. According to the appellants the process of direct
  recruitment was completed on 8th June, 1987. However, the appointment
  orders with respect to the direct recruits were issued only on 14th
  December, 1987. The appellant state that at the relevant time the cadre
  strength of the post of Assistant Conservator of Forest was only 17? and
E the promotees were already occupying mor~ than 50% posts. Their quota
  being only 50% of the posts. We may note here that it is not in dispute
  that the quota ofpromotees and direct recruits was 50% each at the relevant
  time.

F       It appears that while all the formalities with regard to recruitment of
  direct recruits were completed by 8th June, 1987, a Departmental Promotion
  Committee was constituted on 20th June, 1987 to consider candidates for
  promotion to the posts of Assistant Conservator of Forests from the feeder
  posts of Range Officers. Other Departmental Promotion Committees for
  the same purpose were held on· 2nd July, 1987 and 17th October, 1987.
G Two notifications dated 6th October, 1987 and 23rd November, 1987 were
  issued whereby promotees were appointed to the posts of Assistant
  Conservator of Forests. The notification regarding appointment of direct
  recruits was issued only on 14th December, 1987 i.e. after the appointments
  of the promotees had been notified. This gave an edge to the promotees
H in the matter of seniority order recruits. A tentative seniority list was issued
                S.K. SINHA v. STATE [ARUN KUMAR, J.]                  839

on 7th March, 1989 while the final seniority lists showing the appellants A
who are direct recruits as juniors to the promotees was issued on 24th July,
1989. The appellants challenged this final seniority list by filing a Writ
Petition in the High Court. The said Writ Petition was dismissed by a
Division Bench of the High Court on 3rd April, 1996. In a Special Leave
Petition filed against the said judgment, this Court by order dated 2nd B
September, 1996 remanded the matter back to the High Court with a
direction that the High Court should give fresh decision after hearing all
parties.

      After the remand order passed by this Court, the petitioners in the writ
petition (who are appellants herein) filed an application for amendment of C
the writ petition on 28th November, 1996 in the High Court. Several points
were sought to be raised in the amendment application. The amendment
was allowed on 25th May, 1997. None of the parties filed any fresh counter
affidavit in reply to the amended writ petition. As a matter of fact no reply
was filed to the amendment application by any of the respondents. D
Ultimately the High Court passed the impugned judgment on 13th July,
1998 dismissing the writ petition. Apart from rejecting the case of the
appellants on merits, the High Court has laid much stress on the aspect of
delay on the part of the appellants in challenging the promotions of the
respondents. In the original writ petition the appellants had not challenged E
the appointments of the promotees/respondents as such. They had only
challenged the final seniority list. Absence of challenge to the appointments
of the respondents i.e. promotees in the writ petition is another ground
which weighed with the High Court in dismissing the writ petition.

     We have heard the learned counsel for the parties on this aspect of
                                                                            F
the matter. In our view in the facts and circumstances of the case, the
appellants cannot be non-suited on the ground of delay in challenging the
orders of the promotion of the respondents. The important aspect of the
case which persuades us to take this view is that the notifications dated 6th
October, 1987 and 23rd November, 1987 with aspect to the promotions/ G
appointments of the respondents had been quashed by another Division
Bench of the High Court by its judgment dated 9th February, 1996 in
C.W.J.C. 1634/1986. By the said judgment the High Court had permitted
the State Government to issue fresh notification with regard to the
appointments of promotees. The fresh notification came to be issued only H
    840                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A on 15th July, 2002. Therefore, on 3rd April, 1996 when the present writ
  petition was earlier dismissed and again on 13th July, 1998 when it was
  again dismissed by the High Court after the remand order passed by this
  Court, there was no notification in existence regarding appointments of the
  respondents/promotees. The High Court had even quashed the final
B seniority list by the said judgment dated 9th February, 1996. In these facts,
  the appellants cannot be non-suited on the ground of delay in challenging
  the order of promotion to the respondents.

         Coming to the merits of the controversy, Mr. Gopal Subramaniam,
    learned counsel for the appellant raised the following points :

C I.      Posts of Assistant Conservator of Forests were not available at the
          relevant time for appointments of the promotees. In any case promotees
          were already occupying posts of far in excess of their 50% quota and
          therefore, no promotee could be appointed till the process of direct
          recruitment was completed and direct recruits were given 50% quota
D         in the service.

    2.    1:he Departmental Promotion Committee which was constituted for
          purposes of making promotions to the posts of ACFs was not
          constituted in accordance with the rules and therefore, the promotions
          recommended by it were invalid and illegal.
E
    3.    Malafides on account of delay in issuance of notification regarding
          appointment of direct recruits.

          The point though raised was not pressed before us, and therefore, it
          need not be gone into.
F
          In our view the first point regarding alleged non-availability of post
    of ACFs for appointment of promotees at the relevant time is sufficient to
    decide this appeal. On the question of availability of posts the case of the
    appellants is that posts were not available and in the absence of the posts
    no appointments could be made. Still the respondents had gone ahead with
G   the appointments of the promotees. Such appointments are mere fortuitous
    and cannot confer the benefit of seniority from the date of appointment.
    The first document relied upon in support of this contention is a letter dated
    23rd September, 1985 from the Chief Conservator, Forests and Environment
    Department, Government of Bihar, Patna. The letter directly deals with the
H   question of promotion of Forest Range Officer (FRO) to the post of
                S.K. SINHA v. STATE [ARUN KUMAR, J.]                    841

Assistant Conservator of Forests (ACF). The letter notes that under Rule A
3 of the Bihar Forest Service Rules, at least 50"/o of the total existing
vacancies have to be filled by promotion. It goes on to add : "Presently
there are 125 officers in the cadre in the Bihar Forest Service, out of which
 I 05 have been promoted from the post of Range Officer and rest are
appointed by way of direct recruitment." According to this letter as per the B
cadre strength of the posts of ACF in Bihar State Forest Service, the
promoted officers constituted 84%. The Chief Conservator of Forests
expressed his view in the said letter that filling such large number of posts
by way of promotions affects the quality of service. The Chief Conservator
of Forests also notes that the State Service Commission had already issued C
advertisement for filling 40 posts of ACFs by direct recruitment. He has
opined that in these circumstances it would not be proper to fill up the posts
of ACF by promotion. This letter highlights the imbalance already existing
in the service qua the posts of ACF so far as appointments of direct
recruitments and promotees are concerned.
                                                                                 D
      The process of filling the posts by promotion was undertaken in June,
I 987 onwards, which culminated with the issuance of notifications regarding
appointments of promotees as ACF on 6th October, 1987 and 23rd
November, 1987. On the question of cadre strength qua the posts of ACF
reference has to be made to a notification dated 12th August, 1987 on E
which reliance has been placed by both the sides. According to appellants
the said notification shows that the posts were not available for appointment
of the promotees while the respondents read the said notification as an
instrument creating sufficient number of posts to which the promotees
could be appointed. The notification dated 12th August, 1987 is in the form
of a resolution. The subject is mentioned as "Determination of cadre F
strength of Bihar Forest Service". The notification states that the cadre
strength ofBihar Forest Service is being determined by the State Government
with effect from the date of the publication of the resolution as follows :

(I)   Sanctioned posts as per Jetter No. 4260 dated
      26.8.1986 of Department of Forest & Environment
                                                                                 G
      as on 15th April 1985                                     .......... 151

(2)   Sanctioned posts after 15th April, 1985 as per
      letter No. 2856 Dated I Ith April, 1985 of Chief
      Conservator of forest.                                     ......... 21    H
    842                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A (3)      Sanctioned posts of deputation under department of
           Rural Development for the implementation of Social
           Forestry Schemes.                                            .......... 38

    ( 4)   Created posts under Bihar State Forest department
B          operation for development and extraction of minor
           Forest... ... Producer                                       .......... 18

    (5)    Non-Cadre posts of Divisional forest Officers created
           in the cadre of Bihar Forest Service.                        ......... .49

c
                                                               Total .......... 277



           The learned counsel for the appellants submitted that the above
D resolution only determines the cadre strength. It notes the posts which can
    be available for the Bihar Forest Service from various departments. It is
    at best a decision which remains to be implemented. While posts at Serial
    No. 1 & 2 above are clearly available in the Bihar Forests Service, rest of
    the posts have to be added to it which would require certain formalities
E   to be completed before the post could be taken as a part of Bihar Forest
    Service. In Government there are rules of business which have to be
    followed before the posts are created and become available. Thus according
    to the learned counsel for the appellants only 172 posts were existing in
    the service at the relevant time. Relying on the letter of the Chief
    Conservator of Forests, referred to hereinbefore, the learned counsel
F   submits that firstly such large number of posts were not available for
    being filled by appointment of promotees secondly the promotees were
    already occupying posts far in excess of their 50% quota and therefore,
    without first restoring the balance in the service, promotees could not be
    appointed.
G
          We have carefully perused the said resolution. As the heading of the
    resolution suggests, it is merely a determination of the cadre strength of
    the post of ACF. It is a decision as to what should be the cadre strength.
    The resolution cannot be said to be creating the posts. There is lot of
H   difference between determination of cadre strength and creation of posts.
                S.K. SINHA v. STATE [ARUN KUMAR, J.]                   843

Detennination is a decision regarding what should be the cadre strength. A
The decision needs to be implemented. Implementation is by creation of
posts. For creation of posts certain fonnalities have to be gone through.
Nothing has been shown to suggest that requisite fonnalities regarding
creation of posts had taken place. The resolution therefore cannot be taken
as a creation of posts. The discussion which follows will show that the State B
Government itself understood the legal position in the same manner as the
State Government has taken a stand in the subsequent proceedings that
sufficient number of posts had not been created and therefore were not
available.

      In support of his contention that posts were not available for the C
appointment of the promotees at the relevant time in the year 1987 the
learned counsel for the appellants drew our attention to an affidavit filed
on behalf of the respondent in response to a petition for initiating contempt
to court proceedings against the State Government and its officers for not
complying with the judgment dated 9th February, 1996 of the Division D
Bench of the High Court. It will be recalled that by the said judgment the
High Court had quashed the notifications dated 16th October, 1987 and
23rd November, 1987 regarding appointments' of promotees to the posts
of Assistant Conservator afforests and had pennitted the State Government
to issue fresh orders in this behalf in accordance with law. There was E
inordinate delay on the part of the State Government in issuing the fresh
notification regarding appointment of the promotees which led to certain
promotees filing application for initiating contempt of court proceeding.
In reply to the Contempt Application, the Commissioner-cum-Secretary,
Department of Forests & Environment, Government of Bihar stated as F
under:

     Para 8:

      "That so far as the direction issued by this Hon 'ble Court vide
paragraph 93, 94, 95 are concerned, steps have been taken for issuance of G
fresh notification. However, the process has not been completed because
from the record it appears that the promotions were made in the relevant
period against non-existing posts. As such necessary Government order is
required to be issued for creation of post of Assistant Conservator of Forest
by the State Government. first. Thereafter fresh notification regarding H
    844                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A promotions of the petitioners will be issued after following the laid down
    procedure for giving promotions.'"

    Para 17 of the affidavit states "that the Deponent had called for relevant
    records and from the records it was found that in Jhe year 1985 there was
B   133 posts of ACF and in the year 1986 140 incumbents were holding the
    posts of ACF".

    Para 18 : "That from the record it further transpires that in the year 1987,
    82 persons appears to have been promoted/appointed in addition to 140
    ACFs already working from before but there was no sanction order
C   regarding creation of these posts. Even as on date no sanction order for
    creation of these posts is available. After verifying from the records it
    transpires that only 133 posts of A.C.F. have been created by the State
    Government."

D Para 19 : "That this matter has been discussed within department and a
    proposal of creation or additional 91 posts of ACF has been moved. In
    absence of availability of sanctioned post of ACF, any notification
    for appointment of petitioners as ACF will be a nullity in the eyes of
    Jaw."
E
    Para 21 : "That the deponent will issue fresh notification as soon as the
    Government sanctions additional post of ACF which will be subject to
    the result ofthe SLP No. 15295/1998 pending in the Hon'ble SupremeCourt."

F       This stand of the Government is reiterated in para 11 of the Counter
  Affidavit on behalf of the State Government filed in response to the Special
  Leave Petition in this Court. It is stated "respondent-State being conscious
  of the direction issued by the Hon 'ble Patna High Court has taken
  appropriate steps for issuance of notifications promoting/appointing the
  concerned ACFs, the Government could not take a decision to notify their
G promotion/appointment immediately after the judgment passed by the
  Hon'ble Patna High Court because of certain factors, such as, pendency
  of the instant SLP, pendency ofMJC No. 63111998 (R) in the Patna High
  Court, Ranchi Bench and also due to non-availability of sufficient number
  of posts of ACFs".
H
                S.K. SINHA v. STATE (ARUN KUMAR, J.]                    &45

      It is clear from the admission made on behalf of the respondents by A
way of affidavits field in judicial proceedings that sanctioned number of
posts were not available in the year 1987 when the respondents were
promoted as ACFs, rather the promotions were made against non-existing
posts. Can such promotions confer any right on the officers concerned
particularly over and above the other duly appointed officers in the service B
like the appellants? In this connection we have to note that Rule 35 of the
Bihar Forest Service Rules provides that seniority of officers appointed to
the service is to be determined with reference to the date of their
substantive appointment. In order to become a member of the service the
person concerned has to satisfy at least two conditions - first, appointment C
must be in substantive capacity and (2) the appointment has to be to the
post in the service according to the Rules and within the quota to a
substantive vacancy. (per Keshav Chandra Joshi and Others v. Union of
India and Others, [1992] Supp. I SCC 272.

      In the present case neither of the two conditions is satisfied. The posts D
to which substantive appointments were to be made were not available,
therefore, there could be no appointment to the service. When there is no
appointment to the service, much less substantive appointment to the
service, the promotees could not be given seniority with effect from the
purported date of their promotion.                                              E

      At this stage it must be noticed that as a matter of fact the notifications
dated 6th October, 1987 and 23rd November, 1987 regarding appointments
of the promotees had been quashed by the Division Bench by its judgment
dated 9th February, 1996 in C.W.J.C. No. 1634/1986. The Division Bench F
had permitted fresh notification to be issued for the purpose. The notification.
regarding fresh appointment of the promotees was delayed. It was ultimately
issued only on 15th July, 2002. The said notification again states that the
officers are promoted at the post of Assistant Conservator of Forest with
effect from the date mentioned against their names. The date which is
mentioned against their names is 20th June, 1987. This notification was G
issued during pendency of the present proceeding in this Court. The
appellant immediately applied for relief against this notification in the
present proceedings. The question that arises is that when admittedly in
June, 1987 the posts of ACFs were not available for the promotees, how
could by a notification dated I 5th June, 2002 the promotees could be H
    846                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A appointed with effect from 20th June, 1987. Till the affidavit was filed in
    the contempt proceedings in 1998 the posts had not been created, a fact
    mentioned in the affidavit.

        The learned counsel for the respondents tried to explain this clear
B admission on the part of the State Government by saying that the affidavit
  was only by an officer of the Government and did not necessarily represent
  the view of the Government. In our opinion this argument is highly
  technical and least responsible to carry any credence. Firstly, the officer
  was impleaded in the contempt petition as a respondent because he was
C holding the key post at the relevant time. The officer filed the affidavit on
  the basis of record of Government which fact has been so stated in the
  affidavit itself at various places. Secondly, the State Government has
  reiterated the same view in the Counter Affidavit filed in response to the
  SLP in this Court. We are surprised that in spite of these facts, such a
  contention is advanced by a seniority counsel appearing on behalf of the
D respondents.

        We have no reason to discard the clear admissions made on behalf
  of the State Government about non-availability of posts of ACFs for
  promotion of the promotees at the relevant time. This leads to the
E conclusion that the appointments of the resp.ondents-promotees between
  June and November, 1987 as ACFs were against non-existing posts. When
  the posts were not available at all the next question as to whether the posts
  were falling within the quota of the promotees does not arise. Therefore,
  we need not advert to it. The question of availability of posts and the
F number of posts which are available is a question which can be best
  answered on the basis of record. Unfortunately no effect was made to place
  the relevant information before the court by supporting it with records. The
  record position we got in this case only from the affidavit of Shri K.D.
  Sinha, Commissioner-cum-Secretary, Department of Forests & Environment,
  Government of Bihar filed in reply to the contempt petition in the Patna
G High Court, copy of which is available as Annexure R3 to the Rejoinder
  Affidavit filed on behalf of appellants in this Court. The affidavit with
  which copy of the affidavit of Shri K.D. Sinha is annexed, was filed on
  4th November, 1999. No effort has been made on behalf of the State
  Government to controvert the factual position stated in the affidavit of Shri
H K.D. Sinha. We can safely accept the position explained by Shri K.D. Sinha
                S.K. SINHA v. STATE [ARUN KUMAR, J.]                  847

in his affidavit. Thus we hold that the appointments of the respondents/ A
pomotees made between June and November, 1987 to the posts of ACFs
cannot be termed as substantive appointments to the service and therefore,
they cannot confer any benefit of seniority on the respondents over and
above the appellants who were directly appointed to the service vide
notification dated 14th February, 1987.                                    B
     It is settled law that appointments made contrary to the rules are
merely fortuitous and do not confer benefit of seniority on the appointees
over and above the regular/substantive appointees to the service.

     See C.K. Antony v. B. Muraleedharan and Others, [1998] 6 SCC 630, C
MS.I. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and
Others v. Sate of Maharashtra and Others, [1996] l l SCC 361 and State
ofMaharashtra and another A. W Dhope and Others v. Sanjay Thakre and
Others, [1995] Supp 2 SCC 407.
                                                                             D
      The exact date on which Shri K.D. Sinha filed the affidavit in
response to the contempt petition is not ascertainable however it has to be
sometime in the year 1998 or thereafter. From the affidavit of Shri K.D.
Sinha it is clear that even till the date of filing of the affidavit sufficient
number of posts had not been created by the State Government because E
Shri Sinha has stated that he will issue fresh notification about the
appointment of the promotees as soon as the State Government sanctioned
additional posts of ACFs. The State Government issued notification
regarding appointment of the respondent on 15th July, 2002. The said
notification purports to appoint the respondents with effect from 16th July, F
1987. This shows that the posts of ACFs might have been created by the
State Government subsequently. While issuing the notification dated 15th
July, 2002, the State Government could not ignore or prejudice officers like
the appellants who were substantively appointed to the service w.e.f. 14th
December, 1987 i.e. about fifteen years prior to the issuance of the
notification. By the notification dated 15th July, 2002 the seniority gained G
by the appellant fifteen years prior thereto is sought to be set at naught.
The learned counsel for the appellant fairly submitted that the appellants
were not interested in seeking quashing of the appointments of the
respondents. They were only concerned about maintaining their seniority
over the respondents. In the facts and circumstances of the case we see no H
    848                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A justification for disturbing the seniority of the appellants and giving the
  respondents seniority over them. While the State Government may regularise
  the appointment of the respondents-promotees, we hold that the respondents
  cannot be given seniority over and above the petitioners-appellants. The
  Writ Petition succeeds on the question of seniority. The final seniority list
B dated 24th July, 1989 is quashed and the State Government is directed to
  issued fresh seniority list fixing the seniority of appellants over the
  respondents in accordance with this judgment.

        In view of the above discussion, we do not propose to go into the
C question of constitution ofthe Departmental Promotion Committee regarding
  promotion of the respondents. The appeal is accordingly allowed. No order
  as to costs.

    N.J.                                                      Appeal allowed.