SUSHIL PANDEY & ANRversusSTATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS

                         [2023] 3 S.C.R. 207                            207


                    SUSHIL PANDEY & ANR                                 A
                                 v.
STATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS.
                  (Civil Appeal No. 1838 of 2018)
                        JANUARY 16, 2023                                B
       [AJAY RASTOGI AND ANIRUDDHA BOSE, JJ.]
      Uttar Pradesh Police Radio Service Rules, 1979 – rr. 17, 22
– 50% vacancies for the post of Assistant Radio Officers to be filled
through direct recruitment and 50% by promotion from the feeder
                                                                        C
cadre (Radio Inspectors)– Appointments from both the streams were
made on different dates– Combined selection list, quashed by High
Court for being in violation of r.17 and r.22 – Fresh selection list
was prepared, challenged by appellants-candidates from the feeder
cadre – List sustained by High Court – Held: Manner in which
appointment orders were issued was found to be in breach of the         D
provisions of r.17 in the first judgment –However, neither the first
judgment nor the impugned judgment stipulated in what manner
the dates of birth into the cadre for individual candidates from the
two streams were be determined – Since main reasoning of the High
Court for deciding the matter was that selection from both streams
                                                                        E
was made from a common recruitment process,the dates of
appointment orders of both the streamsought to be treated from a
particular date and 30th January 1996 being the date on which the
appointment letters of the promotee candidates were issued, would
be such date – Thus, the seniority of the candidates including the
appellants be determined treating the entry into the cadre of both      F
sets of candidates (promotees and direct recruits) on 30th January
1996 and the seniority position be recast on that basis – On the
question of intra-stream seniority, r.22 shall be followed – Impugned
judgment modified – U.P Government Servant Seniority Rules,
1991– Constitution of India – Art. 142– Service Law.
                                                                        G
      Disposing of the appeal, the Court
     HELD: 1.1 The argument of the appellant that birth in the
cadre first would automatically accord the seniority over and
above those who are appointed at a later date is agreed with.
This principle, however, is to apply in absence of any contrary         H
                                207
208           SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A     provision in the applicable service rule. In the present case this
      aspect has been addressed by the Division Bench in the judgment
      delivered on 12th September 2012. The opinion of the High Court
      in this judgment was that since there was a common requisition,
      the appointments should have been made only after preparing
      the combined select list and seniority ought to have been
B
      determined in accordance with Rule 22. This part of the judgment
      has remained unaltered. Admitted position is that a review petition
      in relation to this judgment was filed but the review judgment did
      not upset this finding of the Division Bench. In the decision under
      appeal, the Division Bench has relied on these two paragraphs of
C     the earlier judgment and come to its finding. Thus, so far as the
      appellants and other parties to this appeal are concerned, the
      said finding has attained finality and this question cannot be
      reopened in an appeal arising out of a subsequent proceeding on
      near identical factual background. The High Court, in the earlier
      judgment found that compliance of Rule 17 was not made in
D
      preparing the seniority list of 1999. The subsequent selection
      list was made in terms of decision of the High Court delivered on
      12th September 2012. The general principle of service
      jurisprudence that seniority is required to be computed from the
      date of actual entry into a particular cadre cannot operate in a
E     case where there is an undisturbed judicial finding that
      appointments were made on different dates in breach of the
      applicable Rules. Moreover, selection list per se does not
      determine seniority as the said list is only to contain names of
      persons who are to be part of a particular cadre. In the 1979
      Rules also, selection list is to be prepared as per Rule 17 whereas
F
      seniority is to be determined in terms of Rule 22. What the
      authorities have done in finalising the 2013 selection list is that
      positioning of incumbents in this list have been made on the basis
      of their seniority. Thus, it has become a combined selection and
      seniority list.[Paras 11 and 13][220-F-H; 221-A-B]
G           State of Uttar Pradesh v. Ashok Kumar Srivastava &Anr.
            (2014) 14 SCC 720 : [2013] 11 SCR 846 – referred
            to.
            1.2 The selection list stipulated how the vacancy positions
      shall be filled but for determination of seniority, the dates of
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     SUSHIL PANDEY v. STATE OF U.P.THR. PRINCIPAL                      209
                 SECRETARY (HOME)

appointment were to be treated as dates of birth in the cadre. In      A
relation to the two streams of entry, after they entered the cadre,
their seniority were to be decided on the basis of such dates of
entry. In the present proceeding, the manner in which appointment
orders were issued was found to be in breach of the provisions of
Rule 17 in the first judgment. But neither the first judgment nor
the judgment under appeal stipulated in what manner the dates          B
of birth into the cadre for individual candidates from the two
streams were be determined. Matter not remanded for that
purpose, considering that the present dispute is continuing for
about three decades. But since the main reasoning of the High
Court for deciding the matter was that selection from both streams     C
was made from a common recruitment process, the dates of
appointment orders of both the streams ought to be treated from
a particular date and 30th January 1996, being the date on which
the appointment letters of the promotee candidates were issued,
would be such date. The seniority of the candidates including the
appellants should be determined treating the entry into the cadre      D
of both sets of candidates (i.e.promotees and direct recruits) on
30th January 1996 and the seniority position should be recast on
that basis. On the question of intra-stream seniority, the provision
of Rule 22 shall be followed. In the recast list, however, the
position for the posts left vacant on death of dead or                 E
superannuated officers shall be treated as fresh vacancies and
filled up through fresh selection process. The judgment under
appeal stands modified. [Paras 15 and 17-19][222-F-H; 223-B-
C]
      K. Meghachandra Singh & Ors. v. Ningam Siro & Ors.
      (2020) 5 SCC 689 : [2019] 16 SCR 651; B. S. Murthy               F
      & Ors. v. A. Ravinder Singh & Ors. 2022 SCC Online
      SC 317 – referred to.
                      Case Law Reference
[2013] 11 SCR 846              referred to             Para 10
                                                                       G
[2019] 16 SCR 651              referred to             Para 10
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.1838
of 2018.
      From the Judgment and Order dated 22.07.2014 of the High Court
of Judicature at Allahabad in SB No.1619 of 2013.                      H
210             SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A          R. Balasubramanian, Sr. Adv., Sridhar Potaraju, Sudhanshu S.
      Pandey, Gaichangpou Gangmei, Advs. for the Appellants.
             Ms. Garima Prashad, AAG, Ms. Ruchira Goel, Harsh Mittal, Adit
      Jayeshbhai Shah, Piyush Sharma, Shivesh K. Srivastava, Ms. Rashmi
      Singh, Ms. Mukti Chowdhary, Siddharth, Amit Kumar Agrawal, Advs.
B     for the Respondents.
             The Judgment of the Court was delivered by
             ANIRUDDHA BOSE, J.
              1. The subject of controversy in this appeal is legality of a selection
C     list for the posts of Assistant Radio Officers in the Uttar Pradesh Police
      Radio Department. This list was made on 25th October 2013, though the
      dispute goes back to the year 1998. As per the Uttar Pradesh Police
      Radio Service Rules, 1979 (“1979 Rules”), the vacancies in the said
      posts are required to be filled up 50% through direct recruitment and
      50% by promotion from the feeder cadre (in this case Radio Inspectors).
D     The appellants before us are from the feeder cadre. There have been
      several rounds of litigations in the past as regards formulation of the
      seniority position and the judgment which is under appeal before us,
      delivered by a Division of the High Court of judicature at Allahabad,
      Lucknow Bench on 22nd July 2014 has in substance, sustained the
E     seniority list of 25th October 2013. The appellants have taken out an
      application (I.A. No. 163147 of 2021) for deletion of proforma respondent
      nos. 20 and 21. Respondent no. 21 has passed away on 7 th July 2017. So
      far as the said respondent is concerned, the appeal has abated as against
      him. It has been pleaded in this application that the Registry has informed
      that there is no evidence of dasti services on the said two respondents.
F     In the office report of 15th December 2015 (annexed as A1 to the
      application), it has however been recorded that service of show-cause
      notice is complete with respect to respondent no. 20. This has been
      followed by the order of the Court of Registrar dated 6th August 2018
      (annexed as A3 to the application), in which also it has been recorded
G     that the respondents have been duly served/represented. But no report
      to that effect is available on records. In such circumstances, learned
      counsel for the appellants has not pressed this application before us.
      This application is dismissed as not pressed.
            2. Requisitions were sent on 11 th January 1992 to the Uttar
      Pradesh Public Service Commission (“the Commission”) for direct
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      SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                            211
        SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

recruitment against nineteen vacancies and forty-three vacancies from          A
the Radio Inspectors on permanent basis for the post of Assistant Radio
Inspector. These vacancies occurred in different years earlier. The
Commission’s recommendations were made on 19th September 1995
for the subject posts so far as direct recruits are concerned. For promotee
candidates, the recommendations were made on 26th December 1995.
                                                                               B
Sixteen promotee candidates were issued appointment letters on 31 st
January 1996 out of the forty-three recommended candidates as the
remaining twenty-seven selected candidates had attained the age of
superannuation or died. The appointment of the direct recruits took place
on 3rd July 1996.
       3. A combined selection list was prepared on 10th December 1999,        C
but it was quashed by the High Court for being in violation of Rules 17
and 22 of the 1979 Rules, in a judgment delivered by a Division Bench of
the same Court on 12th September 2012. This was a common judgment
delivered in three writ petitions. W.P. No. 711(SB) of 2000 was instituted
by two Assistant Radio Officers from the reserved category claiming            D
promotion in the next higher post on the basis of their stand that they
were the most senior officers in that category. The directly recruited
candidates also questioned inter-se seniority with the promotees in Writ
Petition No. 104 (SB) of 2000. In Writ Petition No. 10 (SB) of 2000,
promotee candidates challenged the same seniority list on the ground
that promotee officers were appointed prior to those directly recruited        E
and the directly recruited candidates ought not to be placed above the
promotee officers in the combined selection list. The stand of the direct
recruits was that as the requisitions for selection were sent to the
Commission simultaneously, a common selection list ought to have been
prepared and thereafter seniority should have been fixed as per Rule 22.       F
The other point on which the direct recruits founded their case was in
relation to inclusion in the seniority list the names of those promotees,
who were superannuated or had passed away. It appears that in their
places in the selection list, other promotee officers were pushed up.
Contention of the direct recruits before the High Court was those should
have been declared as fresh vacancies and should have been filled up           G
through a fresh selection process.
       4. The 1979 Rules lay down the procedure for promotion to the
subject posts (along with other posts within the said service). So far as
the present appeal is concerned, Rules 5(1), 14, 15, 17 and 22 are relevant.
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212            SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A     These Rules have been set out in the said judgment delivered on 12th
      September 2012. We quote below these rules, as recorded therein:-
                  “Uttar Pradesh Police Radio Service Rules, 1979
                  5. Source of recruitment :- In service the recruitment
            shall be made on the posts of different categories from the
B           following sources:-
                  Assistant Radio officer: -
                  a) by direct recruitment through the commission; and
                 b) by promotion on the basis of the eligibility of the
C           permanent radio inspectors through the commission;
                  However from both the above sources the recruitment
            shall be made in such a manner that 50 percent of the post
            retained by the direct recruitment and 50 percent post by the
            persons from promotions;
D                 (2) Additional State Radio officer:-
                  By promotion on the basis of the seniority while rejecting
            the unsuitability in the permanent Assistant Radio Officers
            through the commission;
                  However if any suitable person is not available for
E           promotion, then the recruitment can be made from direct
            recruitment;
                  (3) State Radio officer:-
                  By promotion on the basis of the seniority while rejecting
            the unsuitability in the permanent Assistant Radio Officers
F           through the Commission;
                  However if any suitable person is not available for
            promotion, then the recruitment can be made from direct
            recruitment;
                  (4) Dy. Inspector General of Police Telecom:
G
                   By promotion on the basis of the eligibility of the
            permanent State Audio Officers through the Commission
            However if any suitable person is not available for promotion,
            then the recruitment can be made from direct recruitment under
            Rule 15;
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SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                        213
  SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

14. Determination of vacancies :- The appointing Authority           A
shall determine the number of vacancies to be filled up during
the year and the number of vacancies reserved for the
candidates of scheduled caste, scheduled tribe and other
categories and shall inform to the commission;
15. Procedure for direct recruitment :- The Commission shall         B
invite an application in the prescribed format, which can be
obtained from the Secretary of the Commission after making
the payment.
      (2) The Commission under Rule 6 after considering the
assurance of due representations of candidates belonged to           C
Scheduled Castes, Scheduled Tribes and other categories,
shall invite the candidates for interview, who are fulfilling
the required eligibilities.
      (3) The Commission shall prepare a list of the
candidates, in the serial of their proficiency, reflects from the    D
marks secured by the candidate in the oral examination. If
two or more candidate would secure the equal marks, then
commission shall keep their names for the services on the
basis of the general suitability in the serial of eligibility. The
number of names in the list shall be more than the vacancies,
however not more than 25 percent. The commission shall               E
forward the list to the Appointing Authority.
                               …..
       17. Combined Selection list - If the appointment has
been made through direct recruitment and promotion both,             F
then one combined selection list would be prepared, wherein
the name of the candidates would be taken from the list
prepared under rule 15 and Rule 16 in such a manner that
there would be an ordained ratio of the direct recruitment
and promotional officers. The first name would be from the
list prepared under rule 16.                                         G
                               …..
      22 - Seniority - The seniority of the post on any category
of post in the service, would be the same which has been
determined since the date of original appointment order and
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214            SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A           if two or more persons have been appointed, then the same
            would be determined in the serial, in which their names have
            been kept in the appointment order.
            However
                  One - The mutual seniority of the persons appointed in
B           the service as direct recruitment in the service, would be the
            same as determined at the time of selection.
                  Two - the mutual seniority of the persons appointed
            through the promotion in the service would be, which he was
            bearing on the original post at the time of promotion.”
C
                                       (quoted verbatim from the paperbook)
            5. On the question of determination of seniority, it was held by the
      Division Bench in the judgment delivered on 12th September 2012:-
            “11. The determination of seniority is a vital aspect in the
D           service career of an employee, his future promotion is
            dependent on this, therefore, determination of his seniority
            must be in strict compliance of the Rules governing the service.
            This is also the mandate of Articles 14 and 16 of the
            Constitution of India. It has been so held by three judges
            Bench of the Hon’ble Apex Court in the case of Government
E
            Branch Press Vs. D.B. Belliappa reported in [(1979) 1 SCC
            477]. The law is very clear that seniority is an incidence of
            service and where service rules prescribe the method of its
            computation, it must be adhered to strictly.
            12. In the facts of this case, the vacancies were relating to
F
            different years and vacancies were to be filled up by a common
            requisition with regard to direct recruits and the promotes,
            therefore, the selection made by the commission was made in
            a particular year for vacancies of different years. Before
            issuing appointment to the promote officers the
G           recommendations regarding direct recruits were also lying with
            the respondents and no explanation could be furnished by
            learned counsel for the respondents as to why compliance of
            Section 17 was not made and appointment letters for promotes
            were issued. Therefore, the compliance of Section 17, in our
            considered opinion, was necessary and only after preparing
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      SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                             215
        SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

      the combined select list, the appointment ought to have been              A
      made and seniority was to be determined in accordance with
      Rule 22 of the Rules, that has not been done in the present
      case.”
                                   (quoted verbatim from the paperbook)
       6. As regards reflection of the names of superannuated officers          B
and the officers who had expired in the combined selection list, the Division
Bench found:-
      “13. The other blunder that has been committed is that the
      names of the superannuated/dead officers were removed from
      the seniority list and in their place the other promote officers          C
      were pushed up, this exercise is absolutely unheard in the
      service jurisprudence. This mistake, by itself, made the
      seniority list unsustainable under law. If this exercise of the
      Respondents is permitted to prevail, then it would result in
      great injustice to the officers who on their merit join the               D
      services at an early age because in that situation, the officers
      who were senior to them and are older in age shall stand
      superannuated and in their place the officers who are junior
      to them shall be pushed up making them juniors to officers,
      who were subsequently appointed or were appointed in the
      vacancies of the following years. The vacancies so fallen by              E
      the superannuation or by the death of the officers were to be
      filled up by way of fresh selection process, therefore, the
      impugned seniority list is unsustainable under law and
      deserves to be quashed.”
                                   (quoted verbatim from the paperbook)         F
        7. After delivery of the aforesaid judgment, the fresh selection list
was prepared on 25th October 2013. This seniority list had been
unsuccessfully assailed by the appellants before the High Court. Main
argument of the writ petitioners therein was that the directives contained
in the judgment of the Court delivered on 12th September 2012 were not          G
complied with. The argument of the promotees to be kept higher in
seniority on the basis of their earlier entry into the cadre was urged
before the Division Bench. In the judgment under appeal, however, the
Division Bench repelled the challenge to the said seniority list, inter-alia
holding:-
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216     SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A        “We have given our thoughtful consideration to the
      aforesaid arguments advanced and the facts on record and
      we find that the impugned final seniority list dated 25th of
      October, 2013 categorically places the promotes and the direct
      recruits vis-à- vis the year of vacancy serial wise beginning
      from the year 1990-1991. The placement as per the year of
B
      vacancy and the names of such persons who were entitled to
      occupy the same has not been questioned on any firm factual
      foundation. What has been argued is that Rule 17 and Rule
      22 has not been complied with as noticed above. Having
      considered the submissions raised we find that in the absence
C     of any averment indicating any factual fallacy in the year of
      placement mentioned in the seniority list, the contention of
      the counsel for the petitioner cannot be accepted.
         The division bench while proceeding to issue directions
      had observed that Rule 17 and 22 had not been shown to be
D     complied with when the earlier seniority list had been
      circulated. The bench further observed that the State Counsel
      had not been able to explain as to why such compliance with
      regard to issuance of simultaneous letters of appointment had
      not been made.
E        In the aforesaid circumstances what we find is that now
      the rules appear to have been strictly complied with and it is
      in compliance of such rules that the names of the respective
      promotes and direct recruits one after the other have been
      placed.

F        Sri Manish Kumar tried to question the correctness of the
      said placement alleging that as against the direct recruits,
      the space for year of vacancy has been left as blank without
      mentioning the year of placement. The said argument cannot
      be accepted, inasmuch as, the list appears to have been
      prepared by placing first a promote and then the direct recruit
G     according to the year of vacancy.
         This factual position could not be therefore successfully
      assailed by the learned counsel for the petitioner on violation
      of any rule. The contention therefore, in our opinion,
      questioning the correctness of the seniority list on the basis
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     SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                             217
       SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

      of non- compliance of the earlier judgment does not hold                 A
      water.
         We do not find any merit in the petition. The writ petition
      is accordingly dismissed.”
                                  (quoted verbatim from the paperbook)
                                                                               B
        8. So far as the seniority list of 2013 is concerned, the main
grievance of the appellants is that the direct recruits (who are the private
respondents in this appeal) were positioned as per the rota system in the
combined list without mentioning the year of vacancies and the promotees
in respective vacancies of earlier years were ignored in the process
while fixing their seniority. The first appellant was positioned at serial     C
number 52 whereas second appellant was positioned at serial number
48 and they were shown to be in respect of the vacancies for the year
1993-1994. So, essentially the appellants are aggrieved on two counts.
The first is that the direct recruits have been placed in the seniority list
ignoring the year of vacancy. Secondly, they contend that as their             D
appointment and confirmation was prior to those from the stream of
direct recruits, the appellants were born into the cadre earlier than the
direct recruits. According to the appellants, on this reasoning they should
have been placed above the direct recruits in the seniority list. What has
been argued on this point is that the selection list prepared under Rule 17
of the 1979 Rules deal with apportionment of the vacant positions              E
between promotee officers and direct recruits but this list does not deal
with the question of seniority. In this regard, Rule 8 (3) (ii) of the U.P
Government Servant Seniority Rules, 1991 has been referred to. This
rule stipulates:-
         “8. Seniority where appointments by promotion and                     F
      direction recruitment.-
      (1) Where according to the service rules appointments are
      made both by promotion and by direct recruitment, the
      seniority of persons appointed shall, subject to the provisions
      of the following sub-rules, be determined from the date of the           G
      order of their substantive appointments, and if two or more
      persons are appointed together, in the order in which their
      names are arranged in the appointment order:
      Provided that if the appointment order specifies a particular
      back date, with effect from which a person is substantively              H
218      SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A     appointed, that date will be deemed to be the date of order of
      substantive appointment and, in other cases, it will mean of
      issuance of the order: Provided further that a candidate
      recruited directly may lose his seniority, if he fails to join
      without valid reasons, when vacancy is offered to him the
      decision of the appointing authority as to the validity of
B
      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 it is shown
C     in the merit list prepared by the Commission or by the
      Committee, as the case may be;
      (b) by promotion, shall be as determined in accordance with
      the principles laid down in Rule 6 or Rule 7, as the case may
      be, according as the promotion are to be made from a single
D     feeding cadre or several feeding cadres.
      (3) Where appointments are made both by promotion and direct
      recruitment on the result of any one selection the seniority of
      promotes vis-à-vis direct recruits shall be determined in a cyclic
      order (the first being a promotee) so far as may be, in
E     accordance with the quota prescribed for the two sources.
                                Illustrations
      (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
                   Sixth to eight     …     Direct recruits
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     SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                             219
       SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

      and so on:                                                               A
      Provided that-
      (i) Where appointment from any source are made in excess of
      the prescribed quota, the persons appointed in excess of the
      prescribed quota, the persons appointed in excess of quota
      shall be pushed down, for seniority, to subsequent year or               B
      years in which there are vacancies in accordance with the
      quota;
      (ii) Where appointments from any source fall short of the
      prescribed quota and appointment against such unfilled
      vacancies are made in subsequent year or years, the persons              C
      so appointed shall not get seniority of any earlier year but
      shall get the seniority of the year in which their appointments,
      are made, so however, that their names shall be placed at the
      top followed by the names, in the cyclic order of the other
      appointees;                                                              D
      (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
      sources and appointment in excess of quota are so made, the
      persons so appointed shall get the seniority of that very year           E
      as if they are appointed against the vacancies of their quota.”
                                  (quoted verbatim from the paperbook)
       9. Appellants have also argued against inclusion of the names of
expired or superannuated persons in the selection list. Their contention
is that the names of the dead or superannuated persons ought not to            F
have been included at all in the selection list and those promotee officers
with seniority ranking lower than them ought to have been pushed up
and accommodated in the position allocated to the dead or superannuated
officers.
       10. On the question of granting seniority to the directly recruited     G
officers in the select list treating them as senior to the appellants, three
authorities have been relied upon by the appellants. These are State of
Uttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014) 14 SCC
720], K. Meghachandra Singh & Ors. vs. Ningam Siro & Ors.
[(2020) 5 SCC 689] and B. S. Murthy & Ors. vs. A. Ravinder Singh
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220            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     & Ors. [2022 SCC Online SC 317]. These decisions hold against giving
      retrospective seniority. In the case of B. S. Murthy (supra) it has been
      held:-
            “60. From the above discussion, it is clear that no appointee
            from any one channel (direct recruits or promotees) can lay
B           claim to seniority from a date before her or his appointment.
            That being the position in law, it would be now necessary to
            consider the reasons which weighed with the High Court to
            hold that promotees (in regular and substantive capacity from
            1988) had to make way for direct recruits, who were
            appointed in 1991-92. Simply stated, the High Court was of
C           the opinion that promotees had to be treated as occupying
            posts in excess of the quota allocated to them, on an
            application of the 1986 OM. Now, as a matter of fact the
            materials on record establish that there were promote
            vacancies at a time when the ban on direct recruitment was in
D           force (during 1984-1990). To the query dated 11-06-2007,
            the Commissionerate concerned, at Hyderabad stated, in its
            reply dated 30-08.2007, as follows:
                   “In this Commissionerate whatever vacancies occurred
                   in a year, the same were divided in the ratio 3:1 during
E                  the period 1986 to 1990 and the share of vacancy which
                   comes for direct recruit were reported to SSC and the
                   promotee quota vacancies were filled up by holding
                   DPC.”
             11. We agree with the argument of the appellant that birth in the
F     cadre first would automatically accord the seniority over and above those
      who are appointed at a later date. It has been held so in the case of
      Ashok Kumar Srivastava (supra). This principle, however, is to apply
      in absence of any contrary provision in the applicable service rule. In the
      present case this aspect has been addressed by the Division Bench in
      the judgment delivered on 12th September 2012. We have quoted
G     paragraphs 11 and 12 of this judgment above. The opinion of the High
      Court in this judgment was that since there was a common requisition,
      the appointments should have been made only after preparing the combined
      select list and seniority ought to have been determined in accordance
      with Rule 22. This part of the judgment has remained unaltered. Admitted
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      SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                               221
        SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

position is that a review petition in relation to this judgment was filed but     A
the review judgment did not upset this finding of the Division Bench. In
the decision under appeal, the Division Bench has relied on these two
paragraphs of the earlier judgment and come to its finding. Thus, so far
as the appellants and other parties to this appeal are concerned, the said
finding has attained finality and we cannot reopen this question in an
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appeal arising out of a subsequent proceeding on near identical factual
background.
       12. The appellants, however, point out that in determining seniority
in the 2013 list, Rule 22 has not been complied with as dates of
appointment have not been adhered to for such determination. This Rule
contemplates conferment of seniority as per original appointment order.           C
We find from the judgment delivered in the year 2012 that while the
Division Bench found issue of appointment orders to the two categories
of candidates before preparation of selection list to be contrary to law,
the appointment orders themselves were not quashed. Neither was any
specific date notionally directed to be taken as the date of appointment.         D
       13. The High Court, in the earlier judgment found that compliance
of Rule 17 was not made in preparing the seniority list of 1999. The
subsequent selection list was made in terms of decision of the High
Court delivered on 12th September 2012. The general principle of service
jurisprudence that seniority is required to be computed from the date of          E
actual entry into a particular cadre cannot operate in a case where there
is an undisturbed judicial finding that appointments were made on
different dates in breach of the applicable Rules. Moreover, selection
list per se does not determine seniority as the said list is only to contain
names of persons who are to be part of a particular cadre. In the 1979
Rules also, selection list is to be prepared as per Rule 17 whereas seniority     F
is to be determined in terms of Rule 22. What the authorities have done
in finalising the 2013 selection list is that positioning of incumbents in this
list have been made on the basis of their seniority. Thus, it has become a
combined selection and seniority list.
      14. We find that in the judgment under appeal, stand of the                 G
authorities before the Division Bench on the question of fixing of seniority
was recorded as:-
       “He contends that so far as determination of seniority is concerned
       the same has been done applying the quota and rota system meant
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222             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A            for the first place to promotees and second place to direct recruits,
             vis-à-vis the year of availability of respective vacancies.”
                                         (quoted verbatim from the paperbook)
             15. This practise, in our opinion, is contrary to the seniority order
      as contemplated in Rule 17. The selection list stipulated how the vacancy
B     positions shall be filled but for determination of seniority, the dates of
      appointment were to be treated as dates of birth in the cadre. In relation
      to the two streams of entry, after they entered the cadre, their seniority
      were to be decided on the basis of such dates of entry. In the present
      proceeding, the manner in which appointment orders were issued was
C     found to be in breach of the provisions of Rule 17 in the first judgment.
      But neither the first judgment nor the judgment under appeal stipulated
      in what manner the dates of birth into the cadre for individual candidates
      from the two streams were be determined. We are not inclined to remand
      this matter for that purpose, considering that the present dispute is
      continuing for about three decades. But since the main reasoning of the
D     High Court for deciding the matter was that selection from both streams
      was made from a common recruitment process, in our opinion, the dates
      of appointment orders of both the streams ought to be treated from a
      particular date and 30th January 1996, being the date on which the
      appointment letters of the promotee candidates were issued, would be
E     such date.
             16. As regards the manner in which the names of the superannuated
      and dead officers were to be dealt with, the High Court in its judgment
      delivered on 12th September 2012 has already given its findings and
      directions. Those directions having attained finality, we are not taking
F     any decision in respect of that part of the controversy.
             17. We, accordingly, hold and direct that the seniority of the
      candidates including the appellants should be determined treating the
      entry into the cadre of both sets of candidates (i.e. promotees and direct
      recruits) on 30th January 1996 and the seniority position should be recast
G     on that basis. We issue this direction invoking our jurisdiction under Article
      142 of the Constitution of India. On the question of intra-stream seniority,
      the provision of Rule 22 shall be followed. In the recast list, however, the
      position for the posts left vacant on death of dead or superannuated
      officers shall be treated as fresh vacancies and filled up through fresh
      selection process.
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      SUSHIL PANDEY v. STATE OF U.P. THR. PRINCIPAL                             223
        SECRETARY (HOME) [ANIRUDDHA BOSE, J.]

       18. In the event any incumbent, whether superannuated or not at          A
present, has already enjoyed career related benefit as per the seniority
position made in terms of the judgment delivered on 22nd July 2014 they
shall not be disturbed, having regard to the long time-gap between the
origin of the dispute and its conclusion by this judgment. But any officer
holding the subject-post, who would have derived career improvement
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from the recast seniority list shall be given such benefits. For those
superannuated, notional benefits shall be given.
      19. The judgment under appeal shall stand modified accordingly,
and the appeal shall stand disposed in the above terms.
       20. Pending application(s), if any, shall stand disposed of.             C
       21. There shall be no order as to costs.

Divya Pandey                                              Appeal disposed of.
(Assisted by : Prerna Deep and Roopanshi Virang, LCRAs)
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