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CASE NO.: Appeal (civil)  5573 of 2006

PETITIONER: State of Uttaranchal & Anr                       .... Appellant (s)

RESPONDENT: Dinesh Kumar Sharma                            ....Respondent(s)

DATE OF JUDGMENT: 04/12/2006

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: JUDGMENT

(Arising out of SLP (C) No. 12966/2005)

Dr. AR.Lakshmanan, J Leave granted.        This civil appeal is preferred against the final order and  judgment of the High Court of Uttaranchal at Nainital, which  held that, it was appropriate to consider the grant of  discretionary relief to the Respondent in his promotion and  consequential benefits.          The brief facts of the present matter are enumerated  below.         On 25.10.1977, the respondent, Mr. Dinesh Kumar  Sharma was appointed as Subordinate Agriculture Services  Group-I on the post of Senior Chemical Assistant, Research  (Chemistry) Branch through the Public Service Commission,  U.P. Allahabad. Fifteen years service in Subordinate  Agriculture Service Group-I is the eligibility criteria for being  considered for next higher promotion. In the year 1992-93,  respondent became eligible for the said promotion.         On 31.03.1995, the Governor of Uttar Pradesh  promulgated U.P. Agricultural Group II Service Rules 1995  providing for the selection, appointments, probation, seniority,  promotion etc. Rule 21 states that the date of substantive  appointment will be the basis of promotion. On 01.04.1996  and 01.05.1996, two class-II posts in the Hill sub cadre  became vacant due to retirement of two officers. These  appointments were to be made by Direct Recruitment as well  as Promotion. Rule 17 states that, if in any year of recruitment  appointments are made both by direct recruitment and  promotion a combined select list be prepared by taking the  names from the relevant list and "the first name in the list will  be of the person appointed by promotion".         On 19.11.1999, the Secretary to government of Uttar  Pradesh of the Agriculture Department issued an order  conveying that the respondent has been selected for  subordinate Agriculture Service Class-I (Chemistry) in the  substantive vacancy for the year 1997-98 in the scale of  Rs.8000-275-13500, after consultation with the State Public  Service Commission.         On 04.04.2001, the U.P Government Agriculture  Department issued an order directing that those employees  who were already members of the Hill Sub Cadre and posted  at Uttaranchal have been finally allocated to Uttaranchal  Government in which the name of the respondent was shown  at serial No.30.  

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       Thereafter on 17.07.2001 & 27.05.2002, the respondent  made two representations to the Department contending that  his seniority may be counted from the year 1995-96 with all  the consequential benefits as the vacancies fell vacant in that  year. Further on 12.06.2002, the respondent made another  representation stating that his earlier two representations  were not decided upon and that he should be promoted with  effect from the date of occurrence of vacancy.         On 01.10.2002, the Government of Uttaranchal issued  Office Memorandum conveying its decision of rejecting the  claim made by the respondent.         The respondent filed Writ petition No.369/2004 on  21.11.2004 praying the High Court to issue a writ of  Mandamus to promote him with effect from 1995-96 with all  consequential benefits. However, the respondent in his writ  petition has suppressed the fact that the Government had  denied the claim the respondent had made by way of  representations dated 17.07.2001, 27.05.2002 and  12.06.2002. The appellants filed their counter affidavit stating  the rejection of the claim of the respondent in the High Court  on 23.03.2005.         The Division Bench of the High Court of Uttaranchal vide  its final order and judgment dated 29.03.2005 held that, "the  Government is directed to re-consider the matter and send it  back to the Commissioner for appropriate orders suitable in  the facts and circumstances of the case."         It is against this order of the High Court the appellants  are before this Court by way of special leave.         After a perusal of the facts involved here, we feel that the  issues that need to be addressed by us in this case are: i)      Whether the respondent has the right to claim  promotion and seniority from 1995-96 when the  vacancy arose or whether his seniority will be  reckoned from the date of substantive appointment  which is in the year 1999. ii)     Whether the High Court was justified in overlooking  and ignoring the provisions of the U.P. Government  Servants Seniority Rules, 1991 and grant a relief in  favour of the respondents. We heard Mr. Gaurav Banerjee, learned Addl. Advocate  General, appearing for the appellant the State of Uttaranchal,  and Mr. Satyajit A. Desai, learned counsel appearing for the  respondent. Learned Addl. Advocate General submitted on behalf of the  appellants that the promotion and seniority are determined by  applying The U.P. Government Servants Seniority Rules, 1991  and The Uttar Pradesh Agriculture Group "B" Service Rules,  1995. According to these Rules and settled legal position by  way of decisions of this Court it is clear that, to claim  promotion and seniority  from the years 1995-96 when the  vacancy arose is unreasonable and unsustainable. It was submitted by the appellants that the High Court was  not justified in overlooking and ignoring the U.P. State  Agriculture Group II proviso to Article 309 of the Constitution  of India which have been held to be binding by a decision of  this court in the case of K.V. Subba Rao & Ors. vs.  Government of Andhra Pradesh & Ors. 1988 (2) SCC 201,  where this Court held that, promotion and seniority shall be  reckoned from the date of appointment not retrospectively  from the date when the vacancy arose.     It was further submitted that the decision to promote the  respondent was taken by the appellants in accordance with  the Service Regulations present in U.P and that no  interference could be made to such orders. Also that, the High  Court was not justified in overlooking the Statute Law as well

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as the case laws where it is stated in clear terms that,  seniority is determinable with reference to the date of  substantive appointment. This was the view taken by this  Court in K.V. Subba Rao & Ors. vs. Government of Andhra  Pradesh & Ors. (supra) Smt. M. Nirmala & Ors vs. State of  Andhra Pradesh & Ors. 1986 (3) SCC 647 and Sanjay K.  Sinha-II & Ors vs. State of Bihar & Ors 2004 (10) SCC 734.  In all these cases this Court has categorically held that  seniority must be reckoned from the date of substantive  appointment under the relevant rules and also that the right  to frame rules for the determination of inter-se seniority is the  prerogative of the State.  Concluding his arguments Learned Addl. Advocate General  stated that the High Court was not justified in overlooking and  ignoring the provisions of the U.P. Government Servants  Seniority Rules, 1991 and various decisions of this Court in  the subject and grant a relief in favour of the respondents. It  was also contended that the High Court was not justified in  overlooking the fact of suppression of material facts indulged  by the respondent when he approached the High Court.  Mr. Satyajit.A.Desai, learned counsel appearing for the  respondent submitted that the High Court rightly noticed that  the appellant authority had failed to appreciate that the  vacancy arose in the year 1995-96 i.e. on 01.05.1996 and  second vacancy on 01.06.1996 and this fact had come to the  knowledge of the Commission, the Commission could have  given promotion to the respondent w.e.f. those dates as the  respondent was entitled for the same, since the Commission  has found him suitable for the post which is evident from the  promotion order dated 19.11.1999. Thus the said lapse on the  part of the appellant authority in communicating the  authentic and correct date of vacancy to the Commission has  a serious effect on the consequential benefits of the  respondent.  Therefore, it was rightly held by the High Court  that, ’the order dated 01.10.2002 clearly suffers from the non- application of mind and is hereby liable to be ignored.  This is  more so in view of the fact that the vacancy had fallen on  01.05.1996 and 01.06.1996 in the recruitment year 1995- 1996 for two posts in Hill Sub-cadre II are not disputed by the  respondents.  Thus in that eventuality the respondent cannot  be made to suffer on account of delay in recommendation by  the Director of Agriculture for promotion of the respondent.’   It was then submitted that, the approach of the appellant  authority in holding that "there would be no change in the  ranking since the order of substantive appointment was  communicated on 19.11.1999 and therefore the promotion can  be granted only from the date of substantive appointment" is  basically wrong and illegal and dehors the established  principles of service jurisprudence and that the said reasoning  goes without any support from the concerned service rules as  well.   The respondents argued that, it was admitted by the  appellant/State before the High Court that the post on  promotion quota had become vacant in April 1996 and  another post had become vacant in May 1996 on the  respective retirement of Shri Mohan Prakash Joshi and Sri  Krishna Pandey and the respondent being the senior-most  employee and belonging to the hill-cadre ought to have been  appointed against the first available vacancy i.e. April, 1996.   However, Shri Shyam Singh who was from the plain cadre  came to be appointed wrongly out of turn. Since the promotion  of the respondent has been recommended on these vacancies,  it becomes all the more necessary that promotion and  seniority has to be given effect to from the year 1995-96 when  the vacancy actually arose. Rule 17 of the Uttar Pradesh

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Agriculture Group "B" Service Rules, 1995 and Rule 8 of the  U.P. Government Servants Seniority Rules, 1991, specifically  provide that the vacancy should be counted from the year  when it is created.  It further emphasizes that in case of direct  selection and selection by promotion if created in the same  year in that situation the person coming through promotion  quota should be treated as senior.   It was submitted that the denial of the effect to the  promotion from 1995-96 affects the overall seniority of the  appellant as well as his seniority in Class II for all purposes  including pension.  This is more so in view of the fact that the  respondent has been already officiated on the said promotional  post from 28.05.1994 itself as per the directions of the  Additional Director, Uttaranchal. Moreover, it is an admitted  fact that the record of the respondent has throughout been  absolutely clean and unblemished and thus in the absence of  any adverse remarks against him there is no justification to  deny him promotion w.e.f. May 1996. It was submitted that the contentions regarding  suppression of facts by the respondent before the High Court,  as raised by the appellant authority in the present appeal are  completely unjustified, baseless, unfair and inconsequential  and that the substantive prayer of the respondent before the  High Court was regarding the issuance of a writ of mandamus  thereby directing the appellant to promote the respondent  w.e.f. 1995-96 when the vacancies actually arose and to give  all the consequential benefits therein.  It was submitted that  the order dated 1.10.2002 was before the High Court and it  had given sufficient consideration by discussing it thread-bare  while passing the impugned order in question.  Thus it is clear  that the respondent was not acting malafide or suppressing  vital facts from the High Court. We heard the parties in detail and have perused all the  records placed before us in this Court and we are of the view  that the arguments of the appellants merit acceptance. With regard to the issue as to whether the respondent has  the right to claim promotion and seniority from 1995-96 when  the vacancy arose or whether seniority will be reckoned from  the date of substantive appointment which is 1999, it can be  observed that an employee will be considered member of a  cadre from the date of his/her substantive appointment in the  cadre after selection. Substantive appointment is defined under Rule 3 (k) of the  Uttar Pradesh Agriculture Group "B" Service Rules, 1995  where:                          "Substantive appointment" means the appointment not  being an ad-hoc appointment, on a post in the cadre of  the service, made after selection in accordance with the  rules and if there are no rules, in accordance with the  procedure prescribed for the time being by executive  instructions issued by the Government.

Therefore it is clear that unless a selection is made in  accordance with the rules and in the absence of rules, in  accordance with the procedure prescribed for the time being  by executive instructions issued by the Government and there  can be no automatic promotion or appointment to any post on  the recommendation of the Public Service Commission, unless  the government sanctions such promotion and appointment. The perusal of Rule 17 of the Uttar Pradesh Agriculture  Group "B" Service Rules, 1995 and Rule 8 of the U.P.  Government Servants Seniority Rules, 1991, deserves  importance at this stage. Rule 17 states that:  If in any year of recruitment appointments are made  both by direct recruitment and by promotion, a

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combined select list in respect of the concerned  selection shall be prepared by taking the names of  candidates from the relevant lists, in such manner that  the prescribed percentage is maintained, the first name  in the list being of the person appointed by promotion.

This being so, Rule 21 states that: Seniority- The seniority of persons substantively  appointed in any category of posts shall be determined  in accordance with the Uttar Pradesh Government  Servants Seniority Rules, 1991, as amended from time  to time.

Rule 8 of the 1991 Rules state that: 8. Seniority where appointments by promotion and  direct recruitment:  (1)\005 (2)\005 (3)\005 Provided that (i)\005 (ii) where appointment from any source fall short of the  prescribed quota and appointment against such unfilled  vacancies are made in subsequent year or years, the  persons 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; (iii)\005

It is clear from the above that a person appointed on  promotion shall not get seniority of any earlier year but shall  get the seniority of the year in which his/her appointment is  made. Therefore, in the present fact situation the respondent  cannot claim promotion from the date of occurrence of the  vacancy which is 1995-96 but can only get promotion and  seniority from the time he has been substantively appointed  i.e. from 1999. Likewise, the seniority also will be counted  against the promotion/appointment in the cadre from the date  of issuance of order of substantive appointment in the said  cadre, i.e. from 19.11.1999. In a recent judgment of this court in Uttaranchal Forest  Rangers Association (Direct Recruit) & Ors vs. State of  U.P.& Ors 2006(9) Scale 577, (Dr. AR. Lakshmanan and  Tarun Chatterjee) this Court was of the view that seniority has  to be decided on the basis of Rules in force on the date of  appointment, no retrospective promotion or seniority can be  granted from a date when an employee has not even been  borne in the cadre.  Similar view was taken by this Court in  the case of K.C.Joshi vs. Union of India 1992 Suppl (1) SCC  272. In State of Bihar & Ors vs. Akhouri Sachidananda  Nath & Ors 1991 Suppl. (1) SCC 334, this Court observed  that:  "12. In the instant case, the promotee respondents 6 to  23 were not borne in the cadre of Assistant Engineer in  the Bihar Engineering Service, Class II at the time when  the respondents 1 to 5 were directly recruited to the  post of Assistant Engineer and as such they cannot be  given seniority in the service of Assistant Engineers over  the respondents 1 to 5. It is well settled that no person  can be promoted with retrospective effect from a date  when he was not borne in the cadre so as to adversely  affect others. It is well settled by several decisions of

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this Court that amongst members of the same grade  seniority is reckoned from the date of their initial entry  into the service. In other words, seniority inter-se  amongst the Assistant Engineers in Bihar Engineering  Service, Class II will be considered from the date of the  length of service rendered as Assistant Engineers. This  being the position in law the respondents 6 to 23 can  not be made senior to the respondents 1 to 5 by the  impugned Government orders as they entered into the  said Service by promotion after the respondents 1 to 5  were directly recruited in the quota of direct recruits.  The judgment of the High Court quashing the impugned  Government orders made in annexures, 8, 9 and 10 is  unexceptionable."

This court in Vinodanand Yadav & Ors v. State of  Bihar & Ors, 1994 Suppl. (2) SCC 44, held: "On an issue regarding the inter se seniority among the  direct recruits and promotees the Court applying the  ratio of State of Bihar v. Akhouri Sachindananda  Nath held that the appellants who were direct recruits  shall be considered senior over the promotees not borne  on the cadre when the direct recruits were appointed in  service. Hence the gradation list drawn under which  promotees were given seniority over direct recruits could  not be sustained and was thereby set aside".  

We are also of the view that the right to constitute the  selection committee against the vacancy is vested in the  government, and after adopting the due procedure of selection,  the respondent had been substantively appointed by an order  issued by the Secretary, Agriculture, Government of U.P dated  19.11.1999 and this decision of the Government in our view  does not call for interference. The order is reproduced as  under: "Government of U.P Agriculture: Section-I No. 5653/12-1-99-232/96 Lucknow, 19.11.1999 OFFICE- MEMO

Regarding promotions of Sub-ordinate-Agricultural  Services Class-I (Chemistry Branch) as reserved for  temporary posts and also for the appointments to  regular posts in Agricultural Services Group ’B’ Service  Rules 1995 as provided therein and according to the  provision of U.P.Public Service Commission Advisory  Committee for the promotions of selected candidates   (Procedure & Rules of 1970) and according to the advice  and on the basis of the circumstantial provisions of  U.P.Public Service Commission, Allahabad, regarding  the selection procedural basis the Hon’ble Governor had  recommended the name of Shri. Dinesh Kumar Sharma  of Sub-ordinate Agricultural Services Class-I (Chemistry  Branch) for being filled against the vacancy so created  and existed in the year 1997-98 to the post of Assistant  Mrida Chemist to the pay scale of Rs.8000/--275/-- 13,500/- being Regular Temporary appointment is  hereby being recommended.

2. Accordingly Shri Sharma is being appointed to the  vacant post of Asst. Mrida Chemist at Haldwani,  Nainital.

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Sd/- Kesav Desh Raju Secretary"

The representations of the respondent dated 17.07.2001  and 27.05.2002 were received by the office of respondent No.1.  The said representations of the respondent had been decided  by the appellant by a well reasoned and speaking order vide its  office memo dated 01.10.2002. It is pertinent to mention here  that the respondent had concealed this fact, that his  representation has been decided by respondent No.1 long  before filing of this writ petition. Thus, the respondent by  misleading the Court has obtained the order dated 25.11.2004  from the High Court that the appellant shall decide the  representation which has been already decided by the  appellant on 01.10.2002. Another issue that deserves consideration is whether the  year in which the vacancy accrues can have any relevance for  the purpose of determining the seniority irrespective of the fact  when the persons are recruited. Here the respondent’s  contention is that since the vacancy arose in 1995-96 he  should be given promotion and seniority from that year and  not from 1999, when his actual appointment letter was issued  by the appellant. This cannot be allowed as no retrospective  effect can be given to the order of appointment order under the  Rules nor is such contention reasonable to normal parlance.  This was the view taken by this Court in the case of Jagdish  Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC  456.

Coming to the question of whether the High Court was  justified in overlooking and ignoring the provisions of the U.P.  Government Servants Seniority Rules, 1991 and grant a relief  in favour of the respondents, it will be helpful to reproduce the  High Court’s order: "From the perusal of the aforesaid order, it is clear that  the authority has not applied its mind on the facts of  the case as stated by the petitioner, in the  representation, and has rejected the representation on  the ground that since the appointment letter was issued  to the petitioner on 19.11.1999, therefore he is entitled  to his seniority from that date. Even if the recruitment  year is changed the order of appointment cannot be  made with retrospective effect. The authority has failed  to appreciate that if the fact of vacancy being accrued in  the recruitment year 1995-96 i.e. on 1st May, 1996 and  second vacancy on 1st June 1996 had come to the  knowledge of the Commission the Commission could  have given the promotion to the petitioner w.e.f. these  dates, as the petitioner was entitled for the same and  the Commission has found him suitable, which is  evident from the promotion order dated 19.11.1999.  Therefore, this could have consequently affected the  consequential benefits available to the petitioner had his  promotion being made w.e.f. the date of promotion of  falling of vacancy. Therefore, the order dated 1st  October, 2002 suffers from non application of mind and  is hereby liable to be ignored."

"The fact that the vacancy had fallen on 1st May, 1996  and 1st June, 1996 in the recruitment year 1995-96 are  not disputed by the respondents. The petitioner cannot  be made to suffer on account of delay in  recommendation by the Director of Agriculture for  promotion of the petitioner. The petitioner cannot be

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held responsible and cannot be made to suffer as such  became entitled to be considered for promotion on 1st  May, 1996. Therefore, the government is directed to re- consider the matter and send it back to the Commission  for appropriate orders suitable in the facts and  circumstances of the case. Subject to the above, the writ  petition is disposed off finally."

This observation of the High Court in our view is  erroneous. The High Court while observing that, "the  appellants rejected the representation of the respondents  on the ground that since the appointment letter was  issued to the respondent on 19.11.1999, he is entitled to  his seniority from that date. The authority has failed to  appreciate that if the fact of vacancy being accrued in the  recruitment year 1995-96 i.e. on 1st May, 1996 and second  vacancy on 1st June 1996 had come to the knowledge of  the Commission the Commission could have given the  promotion to the petitioner w.e.f. these dates, as the  petitioner was entitled for the same and the Commission  has found him suitable, which is evident from the  promotion order dated 19.11.1999", has committed an error  in understanding and appreciating Rule 17 and 21 of the Uttar  Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8  of the U.P. Government Servants Seniority Rules, 1991, which  categorically states that the date of ’substantive appointment’  will be the date that shall be taken for determining promotion,  seniority and other benefits. It is also to be noted that the representation of the  respondent dated 17.07.2001 and 27.05.2002 were received  by the office of appellant. The said representations of the  respondent have been already decided by the appellant by its  well reasoned and speaking order vide its office memo dated  01.10.2002. It will be of benefit to reproduce the office memo  here: "Government of Uttaranchal Agricultural and Agricultural Marketing Section No. 133/V.I.P/ Aagri/232/96 Dehradun: Dated: 1. October 2002

OFFICE   MEMO

       Shri D.K. Sharma Asstt. Director (Soil Testing and  Exhibition Centre) Regional Land Testing Laboratory,  Rudrapur, Udhamsingh Nagar, in his applications dated  17.07.2001 and 27.05.2002 has stated that vacancies  had arisen on the retirement of Shri Mohan Prakash  Joshi and Shri Krishna Pandey, Agricultural Service,  Grade-II, Department of chemistry, from Government  Service on 30.04.1996 and since the vacancies existed  prior to July 1996 in accordance with the UP  Agricultural Services Group B Rules, his promotion  should have been effected in the vacancy arising in the  selection  year 1995-96 from 1.05.1996, while he was  promoted against the vacancies arising out of the  selection year 1997-98 and therefore his promotion  should be made against the vacancy arising in the year  1995-96 and Addl. Director Agricultural and Land  Preservation in his letter No. Estab-1/Class II/2001- 02/1648 dated 15.09.2001 had recommended the  same.   2.      In regard to the application of Shri Sharma, whose  promotion was made in consultation by the UP Public  Service Commission, Allahabad, in accordance with the

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Public Service(Procedure) Rules, 1970, towards the  vacancies for the Recruitment year 1997-98 vide Office  Memo No. 5653 dated 19.11.1991;  I am to state that  even if the recruitment year of Shri Sharma is to be  taken as 1995-96 rather than 1997-98 even then the  date of substantive appointment would remain the same  being the date the order had been issued.  Since Shri  Sharma’s promotion in respect of the vacancies of the  Recruitment year 1997-98 was issued on 19.11.99,  therefore the date on which the said order of promotion  has been issued being 19.11.1999 it shall remain the  date of Shri Sharma’s substantive appointment after  promotion.  As regards the question of entitlement of  Shri Sharma to the benefit of the selection grade salary  upon selection against the vacancies of 1995-96, the  benefit of selection grade salary is available only in the  promoted post if the officer is working in the said post  for the stipulated period.  The grant of promotion pay is  for the service after the date of the promotion and not  from the date the vacancy arose in the recruitment year.

3.      In the light of the above, the applications of Shri  D.K. Sharma dated 17.07.2001 and 25.05.2002 are  hereby disposed off.

                                                                     B.P. Pandey                                                                         Secretary."      In our opinion, the High Court should not have interfered  with this finding of the Appellants and directed them to  "consider" the representation of the respondent, which in  effect will amount to the reconsideration of the claim made by  the respondent.  In the result, we allow the civil appeal filed in this court  by the Appellant, the State of Uttaranchal and set aside the  judgment dated 29.03.2005 of the High Court of Uttaranchal.  However, we are not ordering costs.