Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  5790-92 OF 2002

 Amarjeet Singh & Ors.        …. Appellants

Versus

Devi  Ratan & Ors. …. Respondents

With    SLP(C) No. 9615 of 2002.

O R D E R

1. These  appeals  have  arisen  from   the  judgment  and  order  dated  

11.4.2002  passed  by  the  High Court  of  Allahabad  (Lucknow Bench)  by  

which it has allowed  the  writ petitions filed by the respondents quashing  

the seniority list  dated 12.7.2000 issued by the State Government for the  

Excise Inspectors.    

2. The facts and circumstances giving rise to these appeals are that the  

appellants  and  respondents  in  these  cases  were  appointed  as  Excise  

Inspectors  under  the  provisions  of  U.P.  Excise  Service  (Class-II)  Rules,

1970 (hereinafter called as  “the Rules 1970”).   The parties became eligible  

for  consideration  for  promotion  to  the  post  of  Superintendent  of  Excise  

under  the  said  Rules,  1970.   The  criteria  of  promotion  for  the  post  of  

Superintendent  of  Excise  and  for  higher  post  of  Assistant  Excise  

Commissioner  (hereinafter  called  “AEC”)  had  been  “merit” under  the  

provisions  of  U.P.  Assistant  Excise  Commissioners  Service  Rules,  1992  

(hereinafter called as ‘the Rules 1992’).  The said rules stood amended w.e.f.  

10.10.1994 and the criteria  for   promotion was changed from ‘merit’  to  

‘seniority   subject to rejection of unfit.” The Appellant Amarjeet Singh  

alongwith some other Excise Inspectors filed writ petition No. 1113(SB) of  

1994  before the Allahabad High Court challenging  the  selection process  

for promotion under Rules 1992. The High Court vide judgment and order  

dated 1.2.1995 held that the vacancies which had come into existence prior  

to 10.10.1994 i.e. the date of amendment,  be filled up as per the unamended  

Rules i.e. on the basis of “merit” and not on the basis of “seniority subject  

to rejection of  unfit.”

3. Being  aggrieved,  the  State  of  U.P.   preferred  the  Special  Leave  

Petition before this Court and this Court vide Order dated 30.10.1995 passed  

an interim Order permitting the State Authorities to make promotions as per  

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1994 amendment Rules but it was subject to the result of the petition as this  

Court made it clear that if petition was dismissed, the respondents would be  

reverted to the lower post from which they would be promoted.

4. In view of the said interim order of this Court, 61 Excise Inspectors  

stood promoted, subject to the final outcome of the Special Leave Petition.  

This  Court  dismissed  the  said  Special  Leave  Petition  vide  Order  dated  

19.8.1999  in limine.   However,  the State Authorities for the reasons best  

known to them, did not revert the promoted officers and they continued to  

hold   the  higher  posts.   The  Departmental  Promotional  Committee  

(hereinafter called the DPC) meant for filling up the 42 vacancies, which  

came into existance prior to 10.10.1994,  met on 19.12.1998.  After scanning  

the service records and determining the inter se merit of the candidates,  the  

Committee came to the conclusion that only 30 candidates were suitable  for  

promotion to the posts of AEC and they were to be promoted as per the  

availability of  yearwise vacancies.   The respondents,  herein,  were found  

unsuitable  for promotion in the said selection process.

5. After completing the aforesaid exercise, 12 vacancies for the post of  

AEC remained unfilled.  Therefore, the  12 vacancies were carried forward  

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to enable the State Authorities to fill up  the same under the amended Rules  

on a different criteria i.e. “Seniority subject to rejection of unfit”.   Thus  

twelve officers/respondents were promoted under the amended rules by the  

another DPC held on 22.1.1999.  The State Government issued  the Order  

dated  15.5.1999  reverting  all  Excise  Inspectors  promoted  on  6.12.1995  

under the interim order of this  Court  and gave notional  promotions with  

retrospective  effect  to  appellants  as  well  as  all  the  reverted  

officers/respondents.  As a consequence,  a seniority list dated 12.7.2000,  

was  issued,   wherein   the  appellants  were  placed  over  and  above  the  

respondents.  Being aggrieved, the respondents approached the High Court  

challenging the said seniority list dated 12.7.2000.

6. The High Court vide impugned judgment and order dated 11.4.2002  

held that as the postings to both set of officers i.e.   those who had been  

promoted by the DPC  dated 19.12.1998 and another DPC dated 22.1.1999  

had been made on the same day and had been given notional  promotion  

from one and the same date, their inter se seniority was to be fixed as it  

existed  in  the  feeding  cadre  of  Excise  Inspectors  and  thus  quashed  the  

seniority list dated 12.7.2000 and further directed the State to prepare a fresh  

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seniority  list  placing  the  appellants  below the respondents.   Hence  these  

appeals.

7. In  these  appeals,  as  most  of  the  appellants  and  respondents  have  

already availed the benefit of promotions and retired on attaining the age of  

superannuation, they lost interest in the litigation.  Only two appellants and  

two to four respondents are still in service and the said appellants feel that  

they would be adversely affected, if the High Court judgment is given effect  

to.   In  these  matters,  the  learned  counsel  appearing  for  the  respondents  

sought discharge  from the cases, as their clients did not respond.  In spite of  

the service of  notices to them, they did not engage any counsel.  Therefore,  

this Court on 26.8.2009 requested Shri Gaurav Agrawal, learned Advocate  

to assist the court as Amicus Curiae who was served with the paper book of  

the cases and appeared today for the respondents.   

8. Shri  Rakesh  Dwivedi,  learned  senior  counsel  appearing  for  the  

appellants has submitted that the action of the State Authorities has been  in  

flagrant  violation of the orders passed by this Court as promotion of the  

respondents  to the post of  AEC had been subject to the decision of the  

Special Leave Petition, which stood dismissed.  The said respondents  ought  

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to  have been reverted forthwith after dismissal of the said petition.  The  

question of  permitting them to continue even after dismissal of the petition  

by this Court was not required and thus, could not be justified.  Promotions  

made by the DPC under the unamended  Rules on the basis of “merit” could  

not be equated to the promotions made by another DPC under the amended  

Rules on the basis of “Seniority subject to rejection of unfit” held at a later  

stage. The High Court erred in considering both the promotions to have been  

made notionally from one and the same date.   In such a fact situation, the  

question of  interpreting the statutory rules was an unwarranted exercise.  

The appellants had been promoted retrospectively, given notional promotion  

from the date much earlier than the respondents.  Therefore, direction to fix  

the seniority in view of their  inter se  seniority as it existed in the feeding  

cadre  was not  permissible.   The appeals   deserve to  be allowed and the  

impugned  judgment  and  order  is  liable  to  be  set  aside  alongwith  

consequential  seniority  list  dated  26.7.2002.   The  seniority  list  dated  

12.7.2000 has to be  upheld and remain intact.

9. On the other  hand,  Shri   Ravi  Prakash Mehrotra  and Shri  Gaurav  

Agrawal, learned counsel appearing for the respondents vehemently opposed  

the appeals and made full efforts to defend the judgment and order of the  

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High Court and subsequent seniority list dated 26.7.2002 contending that in  

case the posting orders have been issued on the same date, inter se  seniority  

of the parties on the post of  Excise Inspectors has to be given effect to.  

Therefore, the appeals are liable to the dismissed.

10. We have considered the rival submissions made by learned counsel  

for the parties and perused the records.  Indisputably, the High Court has  

decided  the  case  interpreting  the  provisions  of   Rule  6   of   the   U.P.  

Government Servants Seniority Rules, 1991 (hereinafter called as ‘the Rules,  

1991).

11. The High Court has considered the Rules elaborately giving effect to  

the said Rule 6 of  the Rules 1991 and its  proviso without  examining its  

validity  which  had been under  challenge  before  it  in  the  connected  writ  

petition.   The  High  Court  observed  that  there  was  no  occasion  for  the  

petitioners therein to challenge the validity of Rule 6, as their seniority had  

already been fixed.     

Rule 3(1)  of  the Rules 1992, the recruitment year is defined as under:

“Year of recruitment means a period of twelve months   commencing from the Ist day of July of calendar year”

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Therefore, we have to keep in mind that the year of recruitment is to  

be  considered  for  the  purpose  of  fixing inter  se  seniority  of  the  officers  

taking into consideration the officers promoted within a period of 12 months  

from  Ist  day  of  July  of  the  year.   Therefore,  if  the  promotions  have  

retrospectively been given to a particular set of officers in the year1995 and  

to another set of officers in the years 1997 and 1998, they cannot be treated  

at par and cannot be treated as equals merely because posting of all of them  

had been made on the same day.   The High Court committed an error in  

recording the finding  of fact that notional promotion had been given to both  

set of officers from one and the same date by virtue of  notification no.  

1098 dated 15.5.1999 and therefore their seniority is  to be determined in  

accordance  with  the  Rule  6  of  the  Rules  1991  irrespective  of   the  

explanation.

12. As the High Court has misdirected itself considering that both set of  

officers had been given notional promotion from one and the same date,  

which, in fact, is not factually correct,  the interpretation of  the Statutory  

Rules or its explanation becomes irrelevant.   

This Court, in  State of  U.P. & Others vs. Onkar Nath Tandon &  

Others, AIR 1993 SC 1173 has  held  that a candidate who is rejected in a  

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common selection and superseded, he would not regain seniority upon being  

promoted  subsequently.   The  High Court  wrongly  distinguished  the  said  

judgment under the presumption that  both set  of officers had been given  

notional promotions from one and the same date.

13. The High Court has decided the earlier writ petition observing that  

vacancies which occurred prior to the  date of  amendment  of the Rules, i.e.,  

13.10.1994,  had to  be filled up as per  the  unamended Rules.   The State  

Government filed a Special Leave Petition, challenging the said order.  This  

Court on 30.10.1995 passed the following order :

“During  the  pendency  of  the  Special  Leave  Petition   appointments may be made as per the existing Rules, but all the  appointees will  be informed that appointments are subject  of   the result of the petition and if the court rules that the revised   rule has no application insofar on the respondents claimants  are concerned, they will be liable to be reverted to the present   post from which they would be promoted.”

In view of  the above, the respondents had been promoted and allowed  

to continue.  This Court, ultimately dismissed the said petition vide Order  

dated  19.8.1998 by the following order :

“ We have heard Shri A.B. Rohtagi, the learned Senior   Counsel appearing for the petitioners in support of the special   leave petition and Shri G.L. Sanghi, the learned Senior Counsel   appearing for respondent no. 5 and Shri Parag P. Tripathi, the   learned counsel appearing for respondent nos. 1 to 4 and 6 and  

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we have perused the impugned judgment of the High Court as   well as the record.   Having regard to the facts of this case, we  do not think that a case is made out for interference by this   court  under  Article  136  of  the  Constitution  of  India.   The   Special Leave Petition is, therefore, dismissed.”

14. In view of the above, the State Government ought to have reverted the  

respondents as their promotions were subject to the decisions of the said  

petition.  In view of the fact that the respondents continued on a higher post  

under the  orders of this Court for years together and even after dismissal of  

the petition filed by the State, and the exercise for making promotions was  

not undertaken by the State Authorities, the appellants should not  suffer for  

no fault of  theirs.  It has fairly been conceded by learned counsel appearing  

for  the  respondents  that  had  the  exercise  of  making  promotions  been  

undertaken immediately after the order of this Court dated 19.8.1998, the  

appellants could have been promoted much earlier and they could have been  

senior  to  the  respondents.   Thus  the  question  does  arise  as  to  whether  

appellants should be asked to suffer for the interim order passed  by this  

Court in a case having no merits at all.

15. No litigant can derive any benefit from mere pendency of case in a  

Court of Law, as the interim order always merges in the final order to be  

passed in the case and if the writ petition is ultimately dismissed, the interim  

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order stands nullified automatically. A party cannot be allowed to take any  

benefit of his own wrongs by getting interim order and  thereafter blame the  

Court. The fact that the writ is found, ultimately, devoid of any merit, shows  

that  a  frivolous  writ  petition  had  been  filed.  The  maxim "Actus  Curiae  

neminem gravabit”, which means that the act of the Court shall prejudice  

no-one, becomes applicable in such a case. In such a fact situation the Court  

is under an obligation to undo the wrong done to a party by the act of the  

Court. Thus, any undeserved or unfair advantage gained by a party invoking  

the jurisdiction of the Court must be neutralised, as institution of litigation  

cannot be permitted to confer any advantage on a suitor from delayed action  

by the act of the Court.  (Vide  Shiv Shankar & Ors. Vs. Board of Directors,  

Uttar Pradesh State Road Transport  Corporation & Anr.,  1995 Suppl.  (2)  

SCC 726; M/s. GTC Industries Ltd. Vs.  Union of India & Ors., AIR 1998  

SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC  

423).

16. In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors., AIR 1992 SC  

1888 this Court examined the similar issue while placing reliance upon its  

earlier  judgment  in  Grindlays  Bank  Limited  Vs.  Income  Tax  Officer,  

Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from  

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the  act  of  the  Court  and  in  case  an  interim  order  has  been  passed  and  

petitioner takes advantage thereof and ultimately the petition is found to be  

without any merit and is dismissed, the interest of justice requires that any  

undeserved or unfair advantage gained by a party invoking the jurisdiction  

of the Court must be neutralized.

17. In Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal Corporation  

&  Anr.,  (1995)  3  SCC  33,  this  Court  observed  that  while  granting  the  

interim relief, the Court in exercise of its discretionary power should also  

adopt  the  procedure  of  calling  upon  the  plaintiff  to  file  a  bond  to  the  

satisfaction of the Court that in the event of his failing in the suit to obtain  

the  relief  asked  for  in  the  plaint,  he  would  adequately  compensate  the  

defendant for the loss ensued due to the order of injunction granted in favour  

of  the  plaintiff.   Even  otherwise  the  Court  while  exercising  its  equity  

jurisdiction  in  granting  injunction  is  also  competent  to  grant  adequate  

compensation to mitigate the damages caused to the defendant by grant of  

injunction.   The  pecuniary  award  of  damages  is  consequential  to  the  

adjudication  of  the  dispute  and  the  result  therein  is  incidental  to  the  

determination of the case by the Court.  The Court can do so in exercise of  

its inherent jurisdiction in doing  ex debito justitiae mitigating the damage  

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suffered  by  the  defendant  by  the  act  of  the  Court  in  granting injunction  

restraining the defendant from proceeding with the action complained of in  

the suit.  Such a procedure is necessary as a check on abuse of the process of  

the Court and adequately compensate the damages or injury suffered by the  

defendant by act of the Court at the behest of the plaintiff.  

18. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., AIR 2003  

SC 4482, this Court examined this issue in detail and held that no one shall  

suffer by an act of the Court.  The factor attracting applicability of restitution  

is not the act of the court being wrongful or a mistake or error committed by  

the court; the test is whether on account of an act of the party persuading the  

court to pass an order held at the end as not sustainable, has resulted in one  

party gaining an advantage it would not have otherwise earned, or the other  

party has suffered an impoverishment which it would not have suffered but  

for the order of the court and the act of such party.  There is nothing wrong  

in the parties demanding being placed in the same position in which they  

would have been had the court not intervened by its interim order when at  

the end of the proceedings the court pronounces its judicial verdict which  

does not match with and countenance its own interim verdict.  The injury, if  

any, caused by the act of the court shall be undone and the gain which the  

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party would have earned unless it was interdicted by the order of the court  

would be restored to or conferred on the party by suitably commanding the  

party liable to do so. Any opinion to the contrary would lead to unjust if not  

disastrous consequences.  The Court further held :

“…..Litigation  may  turn  into  a  fruitful  industry.   Though litigation is not gambling yet there is an element of   chance in every litigation.  Unscrupulous litigants may feel   encouraged to approach the courts, persuading the court to   pass interlocutory orders favourable to them by making out   a prima facie case when the issues are earlier to be heard  and determined on merits and if the concept of restitution is   excluded  from  application  to  interim  orders,  then  the   litigant  would  stand  to  gain  by  swallowing  the  benefits   yielding out of the interim order even though the battle has   been lost at the end. This cannot be countenanced. We are,   therefore,  of  the  opinion  that  the  successful  party  finally   held entitled to a relief assessable in terms of money at the   end of the litigation, is entitled to be compensated……”

Similarly  in  Karnataka  Rare  Earth  &  Anr.  Vs.  Senior  Geologist,  

Department of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view  

has  been reiterated  by  this  Court  observing  that  the  party  who succeeds  

ultimately is to be placed in the same position in which they would have  

been if the Court would not have passed an interim order.   

19 In Dr. A.R. Sircar Vs. State of U.P. & Ors., (1993) Supp. 2 SCC 734,  

the dispute arose regarding the seniority of direct recruits and promotees on  

the  post  of  Professor  of  Medicine  in  a  medical  college.   The  appellant  

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therein  faced the  selection process for  direct  appointment along with  the  

respondents who had been working on the said post on ad hoc basis. The  

appellant  was  duly  selected,  however,  the  private  respondents  could  not  

succeed.  The respondents filed the writ petition before the High Court and  

precluded  the  appointment  of  appellant  pursuant  to  his  selection,  by  

obtaining  the  interim order  and on the  other  hand they  got  their  ad hoc  

promotion  to  the  post  regularized  under  the  rules.   The  appellant  could  

succeed in obtaining the appointment only after dismissal of the writ petition  

against  him after  several  years  of  his  selection.   This  Court  held  that  in  

addition to the relief under the statutory provisions the appellant was entitled  

in  equity  to  get  the  seniority  over  the  respondents  as  they  succeed  in  

precluding his appointment to the post by obtaining an interim order in a  

case having no merits whatsoever.   

20. In Committee of Management, Arya Nagar Inter College & Anr. Vs.  

Sree  Kumar  Tiwari  &  Anr.,  AIR  1997  SC  3071,  the  services  of  the  

respondent therein were terminated, however, he continued to be in service  

on the basis of interim order passed by the High Court in the writ petition  

filed  by  him.   During  the  pendency  of  the  writ  petition,  the  rules  for  

regularization of ad hoc appointees were amended and in pursuance thereof  

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his services also stood regularized.  Ultimately, the writ petition filed by the  

respondent was dismissed.  This Court held that his continuity in service and  

regularization had to be understood as it was subject to the result of the writ  

petition.  As the writ petition was dismissed the order of regularising of his  

services,  passed  during  the  pendency  of  the  writ  petition,  became  

inoperative.  

21. In view of the above, the appellants are entitled for the relief purely on  

equitable  grounds  without  going  into  any  other  legal  issue  and  appeals  

deserve to be allowed and the seniority list quashed by the High Court has to  

be restored.

22. There  is  another  aspect  of  the  matter.   The  appellants  and  the  

respondents have been considered by the DPC held on 19.12.1998 to fill up  

42 vacancies under the unamended rules.  However, at the cost of repetition,  

it may be pertinent to mention  here that only 30 candidates/appellants were  

found suitable  by  the  DPC held  on  19.12.1998 and had been  promoted,  

under the unamended Rules on the criterion  of “merit”.  The respondents  

had  been  promoted  under  the  amended  rules  by  carrying  forward  12  

vacancies,  by  another  DPC held  subsequently  on  22.1.1999  on  different  

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criterion, i.e.,  “Seniority subject to rejection being unfit”.  Indisputably,  

these 12 officers/respondents were found unsuitable for promotion under the  

unamended rules by the DPC held on 19.12.1998.  Subsequent thereto, both  

set  of  officers  had been promoted notionally  from the back dates.    The  

appellants had been given promotions as AEC against the vacancies for the  

year 1994-95 while the respondents were given notional promotions against  

the  vacancies  for  the   years  1996  and  1997.   The  seniority  list  dated  

12.7.2000  was  prepared  accordingly.   As  the  appellants  had  been  given  

notional promotion w.e.f. 6.12.1995 and the respondents  w.e.f. 28.2.1997  

and 13.8.1997,  their  inter  se seniority  had rightly  been determined while  

issuing  seniority  list  dated  12.7.2000.   The  law  permits  promotion  with  

retrospective effect only in exceptional circumstances when there has been  

some legal impediment in making the promotions, like an intervention by  

the Court.

23. An officer cannot be granted seniority prior to his birth in the cadre  

adversely affecting the seniority of other officer who had been appointed  

prior to him.  “The late comers to the regular stream cannot steal a march  

over the early arrivals in the regular queue” (vide Dr. S.P. Kapoor vs. State  

of Himachal Pradesh AIR 1981 SC 2181; Shitala Prasad Shukla vs. State of  

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U.P. & Ors.,  AIR 1986 SC 1859; and Uttaranchal  Forest  Rangers’ Assn.  

(Direct Recruit) & Ors. vs. State of U.P. & Ors., (2006) 10 SCC 346).

24. In the instant case, promotions had been made by two different DPC’s  

held on 19.12.1998 and 22.1.1999.  Both the DPC’s  had made promotions  

under different rules  on different criterion and their promotions had been  

made with retrospective effect with different dates notionally.  In the writ  

petition before the High Court, the promotion of the appellants had not been  

under challenge.    The seniority which is consequential to the promotions  

could not be challenged without challenging the promotions.  

25. Challenging  the  consequential  order  without  challenging  the  basic  

order  is  not  permissible.  (vide  Chithranja  Menon  &  Ors.  Vs.  A.  

Balakrishnan & Ors., AIR  1977  SC  1720).

26. In Roshan Lal & ors. Vs. International Airport Authority of India &  

ors., AIR  1981  SC  597,  the  petitions were primarily confined to the  

seniority list and this Court held that challenge to appointment orders could  

not be entertained  because of inordinate delay and in absence of the same,  

validity of consequential, seniority could  not be examined.  In such a case, a  

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party is under a legal obligation to challenge the basic order and if and only  

if the same is found to be wrong, consequential orders may be examined.

27. In H.V. Pardasani etc. Vs. Union of India & ors., AIR  1985  SC 781,  

this  Court  observed that  if  "petitioners  are  not  able  to  establish  that  the  

determination of  their  seniority  is wrong and  they  have  been  prejudiced  

by  such adverse determination,  their  ultimate claim  to promotion would,  

indeed, not succeed."

28. A similar view had been reiterated by this Court in Government of  

Maharashtra & ors. Vs. Deokar’s Distillery, (2003) 5 SCC 669.

These appeals are squarely covered by  the aforesaid judgments.  We  

are of the considered opinion that in absence of challenge to the promotion  

of the appellants, relief of quashing the consequential seniority list could not  

have been granted.

29. Sum up:

Admittedly, the respondents were over and above the appellants in the  

seniority list of Excise Inspectors.  The rules of 1992 were amended in the  

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year 1994, changing the criterion for promotion from “merit” to “seniority  

subject to rejection of unfit”.  Forty two posts of AEC were to be filled up  

from the Excise Inspectors, as no Excise Superintendent was available for  

being considered for promotion to the post of AEC.  The State Government  

wanted to fill  up the said vacancies by applying the amended rules.   On  

being challenged by some of the appellants,  the High Court held that the  

vacancies which occurred prior to the amendment of 1992 Rules, namely,  

10.10.1994  had  to  be  filled  up  according  to  the  unamended rules.   The  

operation of the judgment and order of the High Court was stayed by this  

Court making it crystal clear that promotions so made under the amended  

rules would be subject to the decision in special leave petition.  Accordingly,  

61 Officers/respondents were promoted.  Subsequently, this Court dismissed  

the SLP vide order dated 18.8.1998 in limine. The officers/ respondents so  

promoted were not reverted.  The  DPC was held on 19.12.1998 to fill up  

said 42 vacancies, but only 30 candidates/appellants were found eligible to  

be promoted to the post of  AEC.  The respondents were found unsuitable.  

In order to give the said respondents a second chance, the State Government  

carried forward the remaining 12 vacancies and directed to fill up the same  

under the amended Rules, and for that purpose another DPC was convened  

on 22.1.1999 and they were promoted on the basis  of different criterion.  

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Promotions were made with retrospective effect determining the yearwise  

vacancies.   Appellants  had  been  given  promotion  notionally  against  the  

vacancies, occurred in the recruitment year 1995 while the respondents were  

promoted  notionally against the vacancies of the recruitment years 1996 and  

1997.   Thus, the High Court committed an error while recording the finding  

of fact that both set of officers had been promoted notionally from one and  

the same date.  Admittedly, promotions were not made with effect from one  

and the same date.  Appellants and respondents were promoted against the  

vacancies which had occurred in different recruitment years under different  

Rules and on different criterion.  Thus, the respondents would rank below  

the appellants in seniority.   

Therefore,  there could be no justification to hold that their inter se  

seniority in the feeding cadre would be relevant for determining the seniority  

of AECs.  More so, had the interim order not been passed by this Court, the  

appellants  could  have  been  promoted  under  the  unamended  rules  much  

earlier.   Thus,  they are entitled  for equitable  relief,   as  the effect  of  the  

interim order of this Court was required to be neutralised.  The  appellants  

had been promoted with an earlier date, thus,  are bound to be senior than  

respondents  who had been promoted with respect  from a later  date.   No  

employee can claim seniority prior to the date of his birth in the cadre.

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30. In  view  of  the  above,  appeals  succeed  and   are  allowed.   The  

impugned judgment and order dated 11.4.2002  is set aside.  The Seniority  

List  dated  12.7.2000  is  directed  to  prevail  and  fresh  Seniority  List  of  

26.7.2002 is hereby quashed.  No orders as to cost.

Before parting with these cases, we would record our appreciation to  

the services rendered by Shri Gaurav Agrawal, Amicus Curiae.

SLP(C) No. 9615 of  2002 :

This  petition  could not  be dismissed  by  the  High Court  at  the  threshold  

without examining the case on merit.  However, no order is required  in this  

case  in view of  the order of this date  passed in  the connected appeal  

nos.5790-5792/2002.  It is accordingly disposed of.

  …………………………….J.    ( HARJIT SINGH BEDI )

  ………………………… ….J.

  ( Dr. B.S. CHAUHAN )

New Delhi,

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November 18, 2009

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