Holding

Promotees retain seniority from the date of their promotion and cannot be displaced by later direct recruits unless the promotee quota is exceeded.

Summary

The case concerned the seniority of Marketing Inspectors promoted to Senior Marketing Inspectors in Uttar Pradesh before a policy introduced a 50:50 quota for promotion and direct recruitment. Respondents 2‑5, who were promoted by promotion, were later placed below later‑appointed direct recruits in a seniority list, causing their reversion to lower posts. The Supreme Court held that promotees retain seniority from the date of their promotion and that the rule of alternate seniority does not override genuine seniority based on length of service. It clarified that seniority is normally measured by continuous service unless the rules expressly indicate otherwise, and that promotees cannot be displaced unless the quota for promotees is exceeded. Consequently, the government's seniority list was set aside and the appeal was dismissed.

Issues considered

Whether promotees' seniority, determined by the date of promotion, can be overridden by later direct recruits under a 50:50 quota.
Whether the rule of alternate seniority requires promotees to be pushed down to accommodate direct recruits.
Whether the government may alter a seniority list after promotion without exceeding the promotee quota.
Interpretation of the combined waiting list provision in the recruitment rules.

Subjects

senioritypromotiondirect recruitmentquotacombined waiting listpublic service commissionadministrative lawUttar Pradesh

Judgment

719 A
•
T.N. SAXENA & OTHERS

v.
• STA'TE OF U.P. & OTHERS 8
May1, 1982

[S. MURTAZA FAZAL ALI AND A, VARADARAJAN, JJ.J

./ U.P. Government Servict-Sentorit)!·-Recruilment from.two Jources-Prtr
mottf$ appointed first and direct recruits much later-Seniority of prOmotees based
c
on length of service not affected by later induction of direct recruits.

According to the relevant orders of the State Government, seniorily in
service was generally to be determined. from the date of substantive appoint.
ment }n a substantive vacancy but. where appointments to a service were made D
both by promotion and direct recruitment, a combined waiting list was to be
prepared by taking candidates alternately from the .lists of prorrioted candidates
and direct reccuits aod appointments made in accordance with that combined
list.
..
The posts of Senior Marketing Inspector under the Food & Supplies
Department of U.P. were l:'eing filled up entirely by way of promotion from the E
category of Marketing Inspector. But, with effect fratµ April 15, 1964, the State.
Government decided to fill up these posts by way of promotion as well as direct
• recruitment in the ratio of 50:50. ·

•

-
Respondents 2 to S w;o had entered service as Marketing Inspectors were
I promoted as Senior Marketing Inspectors in September, 1964,,in the quota of
promotees. The appellants, who were direct recruits to the post of Senior Mar~ F
keting Inspector were appointed much later but were placed above respdndents ,2
to Sin the s~niority list of Senior Marketing Inspectors issued in 1977 which
• resulted in the reversion df respondents 2 to 5 from the posts of Deputy Market~
ing Region~! Officers to which.they had been further promoted in 1974. .

Allowing the petition of respondents 2 to 5, the High Court quashed tho G
seniority list holding that appointments already made by departmental promotion
. to fUbstantive posts would not be affected by the direct recruits coming subsc-
qu.ently through tho .Public Service Commission ..

In appeal, the appellants contended that the direct recruits had to be ad.
justed alternately with the proniotees even though the promotees had been H
appointe~ in their owp quota Ion~ before the direct l'Cl'ruits join«!. service,
720 SUPREME COURT REPORTS . [1982) 3 s.c.R.

A Dismissing the appeal,

HELD l. The promoteeSi- were CntitJed tO maintain their seniority as •
from the date of their promotion and it was '·not open to the Government to
prepare a seniority Jist by pushing the promotees far below the position of senio-
rity which they would legally occupy merely to accommodate the direQt recruits.
The rule of alternate seniority does not mean that the genuine seniority· based on
B length of service should be completely overlooked. [726 G] ·

2. The normal rule is that seniority should be measured by the length of
continuous officiating service unless a contrary intention appears from the rules.·
In this Case, according to the orders issued by the Government, the length of
service was the prime criterion for determining seniority. [726 A-B]
c ~- Promotees regularly appointed duri~g a particular period within the
quota of promotees can claim their .whole lepgfh of service for the purpose' of
seniority as against direct recruits who may turn up in succeeding periods. [726 C]
•
Bishan Sarup Gupta v. Union of India & Ors., [1975] 1 S.C.R. 104 held
inapplicable; N.K. Chauhan & Ors. v. State of Gujarat & Ors. [19(7] I S.C.R.
D 1037 and B.S. Yadav & Or~. v. State. of Haryana & Ors., [1980] 1S.C.R.1024
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3148 of
1979.
E
Appeal by special leave from the judgment and order dated
the 18th May, 1979 of the Allahabad High Court in Writ Petition
No. 1372 of 1977. ""

F
Dr. Y.S. Chita/e and A.K. Srivastaw1 for the Appellant.

R.K. Garg, G.N. '])ikshit, V.J. Francis, D.K. Garg, S. Dikshit
and Ashok Grover for the Respondents.

The Judgment of the Court was delivered by
_,
-
G FAZAL ALI, J. This appeal by special leave is directed against
a judgment dated 18.S.79 of the Allahabad High Court quashing the
impugned seniority list dated 4.4.77 issued by the Government of
U.P. (hereinafter referred to as the 'Government') which resulted in
the reversion of respondents 2 to 5 to lower posts.
H
The facts of the case lie within a narrow com'pass and, in our
opinion, seem to be concluded by several decisions of this Court,
,
--- I
.. --
T.N. SAXENA v. U.P.. STATll (Fazal Ali, i.) 721

Respondents 2 to 5 had passed the High. Scltool Examination llnd
'
entered the service of the Government all Marketing Inspecton
nnder the establishment of Food & Supf1Jies Department on various
dates and were later ·confirmed on these posts. In fitct, lo begin
with, the Department itself was temporary but was later on made
permanent. It may be stated here that the post of Marketing ,B
•
Inspector 'Was exempted from the scope of the Public Service
Commission. The . next higher post in the hierarchy of the Depart~
men! was that of Senior Marketing Inspector and previot11 to the
. year 1964 these posts were filled entirely by promotion 'from
Marketing Inspectors. As respondents 2 to 5 were already confirm-
ed in their original post of Marketing Ifispector, they were pr.omoted c
to the rank of Senior Marketing Inspectors with effect from Septem-
ber 1964 and since then had been holding the post until their.further
promotion as Deputy Marketing Regional Officers in June 1974.

It appears that right from. 7.12.44 upto Sept. 1964 the criteria
for determining the seniority of the afore$aid 'employees was total D
length of service including identical and high'er s'cafo,of pay. It is
!,lOt disputed that respondents 2 to 5 fulfilled botli the criteri~
mentioned above. Sometime in 1964, however, the Government
took a policy decision that so far as the cadre bf Senior Mit~keting
Inspectors was concerned, the posts would Ile fille'd by tlvo sources,
viz., (I) promotion ancl'{2) direct recruitinei\i in !lib ratio of 50:50. E
As a result. of this &Cisiol\ a very· large number of posts were
\. sancti()ned to accommodate the direct recruits who . were , to be
appointed through a competitive examination hefd by the Public
• Service Commission. The Government also ordered that hence-
. forward the posts of Senior Marketing Inspectors shoufd be brought
F
within the purview of .the Public Service Commfssion. We have
· -"--- mentioned this fact expressly because one- of points that was raised
• '· before the High C~urt by the appellants was that. respondents 2 to 5
had not been· cleared by the Public Service Commission nor were
their cases referred to it. Nothing much turns upon this point
because it was not argued before us in the appeal. Moreqver, as G
respondents 2 to 5 were confirmed hands question of taking the
formal sanction of the Public Service Commission would be i;nore or
less inconsequential and could be given subsequently with retrospec-
tive effect. We might further state another ,.undi.sputed fac!-the
posts'of the Senior Marketing Inspector at. the bme ~f the ~ew H
policy taken by the Government wer~ ·il!9re11:se4 !\nd respondents 4 tQ
'
722 SUPREME COURT REPORTS (1982) 3 S.C.R;

A •5 who had been promoted purely in the quota when the Govern-
ment decided to recruit the other 50% by direct recruitme11t. This ~:

fact is rather important because it distinguishes the present case •
from some of the decisions of this Court on whiCh heavy reliance
bad been placed by the counsel for the appellants.
-~ '
8 .The principles concerning the recruitment of the promotees and
tbe direct recruits were contained in a letter of the Government
(Annexure C to the petition) relevant portion of which may be
' extracted thus :

c "I am directed to address ~ ou on the above subject
and to say that the post of Senior Marketing Inspector has
been placed within the purview of Lok Seva Ayog with
effect from 15 April 1964. The recruitment to this post
will now therefore he made on the principles indicated
-
below:
D . I
(i) 50% of the posts will be filled by promotion from
amongst the Marketing Inspectors and the remaining
50% by direct recruitment . through Lok Seva Ayog.

(ii) Educational qualifications· for direct recruitment
through Ayog will be graduate of a recognised Univer-
sity with preference to graduate in Agriculture.

(iii) Age limit is 21 to 25 years. Age limit for departmental
candidate for promotion• will be 40 years. dfficials
wbo start officiating as Senior Marketing· Inspector •
before the age of 40 years will, however, be considered
for ·promotion.

(iv) All permanent Marketing Inspectors who have put
in 5 years service, permanent an<;! temporary both, will
'
be eligible for promotion. No educational qualification
G has been prescribed for promotion except that no
one who has not got the minimum qualification shall
be eligible for promotioJl." _

H_ A perusal of this ·letter would clearly show that the quota
. ""
of
the promoted Senio; Marketing Inspectors was not at all touched
or altered ·and even the age-limit for the candidates who had been
-,

T.N. SAXENA v. b.!>. STATll (Fazai Ali, J.)
. --( .

• promoted was extended upto 40 years and it is not disputed that A
respondents 2 to 5 were within that age-limit.

Regarding the question of seniority, which is the fundamental
point in issue in the appeal, the Rules provide thus :

• B
· "(xi) Seniority

Seniority: in service shall generally be determined
from the. date of substantive appointment to a service or
from the date of the order.of appointment in a substantive
vacancy. In special cases seniority may be determined in c
accordance with the conditions which may suit a particular
service. If two or more candidates are appointed on the
same date, their seniority will be determined according to '
the order in which their names are mentioned in the
appointment order.
D
Where appointments to a service are made both by
direct recuritment and promotion, a combined waiting list_
would be prepared of the candidates recruited by both the
sources and appointments made in accordance with that
combined list. The combined list is to be prepared by
taking candidates alternatley from the lists of promoted
candidate~ an<l direct recruits." ~
•
The High Court has rightly construed. the aforesaid Rule of
seniority to connote that appointments already made by depart-
mlltltal promotion to substantive posts would not be-affected by the
dir~ct recruits coming subsequently through the Public Service Commis-
sion. Reliance was, however, placed by the appellants on the 2nd
paragraph of the Rule which stated that the combined list was to be
prepared by taking candidates alternately from the list of promoted
candidates and direct recruits. This clause bas to be interpreted ratio- G
nally so as to advance the real object of the Government which was
merely to enlarge the the area of recruitment of Senior Marketing
Inspectors without affecting the persons who had already been pro-
moted to the higher post long before even the policy of taking direct
recruits through Public Service Commission was ilorn. Unfortunately H
however after the direct recruits were taken as · Senior Marketing
Inspectors, sometil!le after . 1970 they were put above respondents
724 stJl>llEMll cotJk't REP6kts (198~) j s.C.k

.A 2 to 5 who, by the time the direct recruits were appointed,
had already been promoted even to a higher post, viz., Deputy •
Marketing Regional Officers. The High Court relied on a Govern-
ment order setting out guidelines relating to seniority which has
already been extracted above.

B
Perhaps Jhe Government was under the impression that as the
quota of 50% was reserved for direct recruits and they had come
through competitive examination with higher qualifications, they
would have. to take precedence over the promotees even though
the promotee bad occupied the post in their own quota long
c before the direct recruits appeared oi;i. the scence. Under this erro-
• neous impression the Government issued the impugned seniority
list of 1977 which has, in our opinion, rightly been quashed by the
High Court.

D The first point raised by the counsel for the appellants was
that in view of the fact that the direct recruits possessed a higher
qualification and were recruited through the Public Service
Commission, they bad to be given priority in respect of seniority
over the promotees.

E It was further argued that as a result of the Government
Orders, the direct recruits bad . to be adjusted alternately with
. the · promotees even thqugh the promotees had been appointed
in their own quota long before the direct recruits joined the service.
We are, however, unable to agree with this somewhat broad and
ingenious argument. It is true that · where there are two sources
of, recruitment and the Rules expressly provide that one source
would have precedence over the othe).', then the position as
con.tended by the counsel for the appellants would have to be
accepted. In the instant case, we are unable to find any such
/
..
~/
-
inhi.bition or prohibition in the order passed by the
Gov.ernment. In fact in N.K. Chauhan and Ors. v. State of Gujarat
G anti.Ors. (1) to w.bich one of us (Fazal Ali, J.) was a party, it was
clearly laid down that so long as the promotees do. not exceed their
quota.they were entitled to maintain their seniority as from the date
0f,their promotion, where this Court made the following observa-
H tions:-

(!) ,[1977] I S.C.R. 1037.
't.N. SHAii v. U.P. STATB (Pazal Ali, J.i
"'(_he;qlJp~ ru)~ !W~s not, inevJtablx, iµyoke the
A
l\PP.li~1Vi11n. qf; .Qle rota,. ru.le. Tl)e imp~ct of this posi-
tion is thJt if sufficiontn11mber of direct recruits have
not been 'rorth~on:iing.in the years since 1960 tq fill in
the, ratio. due to them and those deficient vacancies
• h!lye, b~~I) fi!led u,P, by proll)9tees, 11\ter dir~~trecruits
ca,qno~ c!ailll 'd~eerni;d' dJl;t~~ oJ 11ppointme11t for senio·
8
rity in · serviee with ~!feet from the time, acc,Qrding to -
1 the rota or tum, the· direct recruits vacancy arose.
SepioritY, wjll 4~Pe,t!_4 on t~e l~ngtJi of co,ntin119us
qljicialti;ig,sc:_cy,ic\l a,\l,\l: cJ!,lµIQt b~ Qlil~et by:l,a~er, arrivals
frQJ1lAl~ QRefl.ipAr~et:s!lo,v,e t9_ th~ exteQt t9,Wi\ch any c
~f,es,s, J:lrolii,ote~$,~ ljj\,v.e; to Iii;. pusl)ed dqwn as
indicated earlier. ·

+ + • ;+
'Seniority, normally, is.. m~ured by length of conti- 0
nuous, officiating service:_the actual is easily accepted
as the legal, This doe's ·not preclude a different
·prescription, constitutionally tests being satisfied·,

+ + + + '
g
Prom9J~,re&ula!l1'1 appointed .dµriog,period· A in
ex~~- Q); thi;..i.li.qll.9!1'. for.- waJ1t1of dire<:t recruits (rea·
BllOllbly,. sqll&IJ~bi» not,. sei;ure.d lll!d:because tarrying
lql}l!Fr w.pµtd h,ljurMhe..administration) cap c!aim their
whole length 0£, s~j~e for, seniorit~» even,.against
direct recruits who may tum up i)J succeeding
periods.
•
Pr11motees w)10 hl)ve been_ fitted· into va,c!lDCies
beyoµd_ thejr quotadurin11 the perjod B-the year beiqg 1
reg~r,ded a~ the U)lit-must sufi'.~r surviva) a,~ invaJ.id G
apppin~ee~ acquiring new life when_ vacan_cies in. th~i.r
quota fall to be filled up. To that extenttbey willslep
down, rather be pushed down as against direct recruits
W,h.<;\ we~. 11!.l~r b11t regl\ll\dY appointe.d wi\bi11; their
quQt.11.:' · H
This case clearly laid down three important p.rincip)e•.
?26 {l~ii~J 3 S.C.ll..

A (1) Normal rule is that seniority should be measured by
·the length of continuous officiating service unless a
contrary intention appears from the rules.

We have already shown from the' Rules framed 6y
the Government that the length of service was deter·
B mined as the prime criteria for determining the senio- .
rity.

(2) Promotees regularly appointed during a particular
period in excess of their quota for want of di.rec! re-
cruits can claim their whole length of service for· senio·
c rity even against direct recruits who may turn up in
succeeding periods.

(3) Promotees who had exceeded their quota would have
to be pushed down to accommodate direct recruits
D coming after their appointment.

The case of respondents 2 to 5 clearly falls within the first
two principles.

The admitted position is that respondents 2 to 5 bad not
exceeded their quota of 50% when they were promoted as Senior
E Marketing Inspectors. In fact, they were promoted as Senior
Marketing Inspectors Jong before tbe Government evolved the policy
offilling up the posts of Senior Marketing Inspectors by direct
recruits, It is also clear that none orthe respondents had encroacl;i· .
ed on the 50% ·quota which was reserved for direct recruits under
F .. tbe new Rules framed by the Government.

In these circumstances, tlierefore, it was not open to the
Government to prepare a seniority list by pushing the promotees far
below 1he position of seniority which they would legally occupy
merely to accommodate the direct recruits. The rule of alternate
G seniority does not mean that the genuine seniority based on length of
. service .by a previous employee should be completely overlooked
or obliterated. . '

Reliance was, however, placed on an earlier .decision Of this
H Court in Bishan Sarup Gupta etc. v. Union of India and O~s.(')

(I) (1975] I SCR 104.
T. N; SAXE~A v. U.P. STATB (Faza/ Ali, J.) 727

In this case also it was clearly held that the promotees could be
pushed down only if they had exceeded the quota allotted to 'them.
In \he instant case not only the respondents 2-5 did not exceed
their quota liut had secured ,much higher pr.omotions by the· time
the direct recruits came- to be recruited and had to· be reverted . to
lower posts in order to accommodate. the direct recruits. Such a
gross injustice, in our· opinion, cann6t l\e countenanced by the B
rules or orders made by the Govern111ent11or can such a course of
aq~ion be spelt out from Bishan Sarup Gupta's case (supra) .
•
In B.S. Yadav and Ors. v. State of Haryana, and Ors.(1) the
earlier decision of this CourfTllChquhan's dase (supra) was reiterated
11nd Chandrachud, CJ speaking for the Court orbserved thus : c
"Is it proper and fair to.defer the confirmation of the
projilotees merely because direct recruits are not available
at that point of time so as to ~able the High Court to
make confirmations from both the sources by rotation ?
This, precisely, is what the High Court has done by the D
impugned notification dated 25-8-'1976 and that is the.
. reason why it has not confirmed ten more promotees in
Punjab, for whom vacancies are available within the quota
·of promotees. '
E

What is relevant is the decision of the Court that the
quota rule will lie enforced at the time of initial recruit-
ment. and not a:t the time of confirmation? ... .-. Seniority
of promotees, according to this decision, .could not be up-
set by later arrivals from the open market, save to the F
extent to which any excess promotees have to be pushed
down.''

It is, therefore, clear frqm an ana]ysis of the decisions of this
Court cited before us that the quota rule and the rota rule must be G
applied in a practical fashion so as not to cause injustice to any
employee. In the instant case, as the Government by virtue of the
impugned seniority list had com'pletely upset the seniority of respon-
dents 2 to 5, the principles governing the order were directly
opposed to what has been held and pointed out by this Court. The
'
,.\- (I) [1980) l S.C.R. 1024.

;. '
728 SUPREME 'c6Ultr REPORTS '11982) 3 s.c.R_.

High Court, in our opinion, was fully justified in qu~shing the '"°'
seniority list. •

Lastly, it was contended that the High Court while s!kikiilg
down the seniority list has not struck down tlie GoV'etnmeilt 'Orcltr
which bad nxed the rota and· Wk 'quota rule. As indicate~ · above,
if the rota and the quota rules are properly interpreted, as h'eld by •
this Court in the cases cited above,. ·the Governmeht order canilOt 'be
said to be bad or legally invalid. The defect Jay in the Govern'
ment itself misconstruing its own order while issuing the ·seniority ·
list, wbicb error was rightly 'corrected by the High Court. .

c The Government shall now issue a fresh seniority liit lo 'the
light of the observations made and principles enunciated by this
Court and the High Court so as to avoid any revenioo of pro-
mote!s Who had been promoted within their quota assenior
Marketing InsJ*ctors or abtlve.

D For the reasons given above, all the contentions raised &y the
appellants are overruled and the a\)peal fails and is dismissed but in
the circumstances without any order as to costs.

H.L.C. Appeal dismissed.

-
'