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CASE NO.: Appeal (civil)  4249 of 2006

PETITIONER: Uttaranchal Forest Rangers’ Asson.(Direct Recruit) & Ors

RESPONDENT: State of U.P. and Ors

DATE OF JUDGMENT: 25/09/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 7375/2005) WITH Civil Appeal No.\005\0054250 \005\005\005of 2006 (Arising out of SLP(C) No. 1860/2006)

Dr. AR. Lakshmanan, J.

Delay condoned. Leave granted. These appeals were filed against the final judgment and  order dated 12.4.2004 passed by the High Court of Judicature  at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.  366(S/B) of 2002 whereby the High Court allowed the writ  petition filed by Shri C.B. Chhimwal, respondent No.5 herein  in S.L.P.(c) No. 7375 of 2005 and against the final judgment  and order dated 26.11.2001 in W.P.(C) No. 610(S/B) of 1996  whereby the High Court allowed the writ petition filed by Shri  Suresh Chandra Sharma and Shri Vijay Kumar Mishra,  respondent Nos. 5 & 6 herein in S.L.P.(c) No. 1860/2006.   The appellants in these matters are direct recruits to the  post of Forest Rangers in the State of U.P, now Uttaranchal.  The respondents are the State of U.P, State of Uttarnchal and  Ors. The brief facts are as follows: In the state of U.P, during the period 1969-1979, there  was no direct appointment to the post of Forest Rangers. The  Government kept promoting Deputy Forest Rangers on ad hoc  basis to the post of Forest Rangers if any vacancy arose. On 30.11.1989, by a Government Resolution, 124  persons who were promoted on ad hoc basis to the post of  Forest Rangers were regularized in 1972 -1979. However, as of  30.11.1989, there were not enough vacancies in the promotee  quota to accommodate all the regularized Forest Rangers.  Hence, some of the regularized 124 Forest Rangers were  pushed down and accommodated in 1990 and 1991. By the  year 1991, all the 124 regularised Forest Rangers were  accommodated. In 1991, there was only one vacancy in the  promotee quota.  Later in 1989-1990, the members of the appellants  Association were appointed in the year 1990 as Forest Rangers  on the basis of competitive exam held by the U.P. Public  Service Commission in 1989. They were substantively  appointed on the post of Forest Rangers by direct recruitment  on various dates in 1990 e.g. the President of the Appellants  Association was appointed on 01.03.1990. Appellant No.3 was  appointed on 01.11.1990. The appointments were within the  direct recruitment quota.

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On 30.01.1991, without realizing that there was no  vacancy in the promotee quota of Forest Rangers the State of  U.P. sent a requisition to the Public Service Commission to  recommend 410 persons for promotion to the post of Deputy  Forest Rangers. This mistake has been admitted by the State  of U.P. in their counter affidavit before the High Court as also  in this Court. On 06.07.1991, the State PSC vide its letter dated  06.07.1991 sent the names of Forest Rangers as if there were  vacancies from the period 1979 to 1989 in the promotee  quota. The UPPSC allotted the officers on the basis of the  selection year. Needless to mention there is no provision in the  Service Rules for allocation on the basis of year of selection. In  any event, there were no vacancies and, therefore, the basis of  this recommendation was incorrect. On the basis of this recommendation on 17.07.1991, 356  Deputy Forest Rangers were promoted to the post of Forest  Rangers ’from the date of taking charge’. They were not given  any back-dated promotion.  The respondents have not  challenged their promotion order which promoted them w.e.f.  the day they took charge. On 31.05.1996, when the State of U.P. was preparing the  seniority list of Forest Rangers, it went strictly by the Seniority  Rules. Since the appellants were substantively appointed  within their quota in the year 1990, they were placed senior to  the respondents. However, as of 17.07.1991, since there was  only one vacancy in the promotee quota of Forest Rangers, the  respondents herein were notionally pushed down for the  purposes of the seniority alone and were adjusted till 1996.  Needless to mention the respondents get all the benefits of a  Forest Ranger though there was no vacancy when they were  promoted, except seniority.  Since, there was no direct  recruitment after 1990; the respondents do not suffer at all.            In July 1996, two of the Promotee Forest Rangers  namely, Shri Suresh Chandra Sharma and Shri Vijay Kumar  Mishra figuring at Sl. Nos. 286 and 277 in the promotion order  of 17.07.1991 challenged the seniority list dated 31.05.1996  by way of a Writ Petition No.610 of 1996 in the High Court of  Allahabad, claiming seniority.  The State of Uttaranchal came into being on 8th of  November, 2000. On 30.04.2001, the respondent Suresh Chandra Sharma  opted for the State of Uttaranchal and started working in the  State of Uttaranchal w.e.f. 30.04.2001. However, he did not  implead the state of Uttaranchal or the present appellants as a  party to the writ petition. In 20.07.2001, the pending Writ petition was allowed by  the High Court and the High Court directed that the seniority  list on challenge be corrected by showing the promotees as  senior to the direct recruits by an order dated 26.11.2001.     On 12.06.2002, the new State of Uttaranchal notified in  its own seniority list of Forest Rangers in which the appellants  were shown as seniors to the promotees. Another promotee Shri C.B. Chhimwal respondent no.5  filed a writ petition challenging the seniority list in the High  Court of Allahabad. The High Court by an order dated  12.04.2004 allowed Chhimwal’s claim following its previous  order in the case of Suresh Chandra Sharma. The appellants were unaware of the said order of the  Allahabad High Court at Lucknow. It was only when the said  order was produced before the officers of the State of  Uttaranchal, by respondent no.5, the appellants came to know  about the order which was passed by the High Court without  making them a party.  Following the Chhimwal case, 44 others moved the

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Allahabad High Court challenging the said seniority list. The  High Court of Allahabad disposed off all the writ petitions and  allowed the claim of all the writ petitioners and ordered  retrospective application of the order. By an order dated 18.01.2005, the State of U.P. issued  an amended promotion order by which 45 persons have been  granted retrospective seniority, some from 01.01.1979 i.e.  from a period of 12 years prior to their actual date of  promotion, even though, admittedly, there was no vacancy in  the promotee quota, the effect of this order would be in the  state of Uttaranchal as well.    The appellants thereafter approached this Court on  20.02.2005 seeking a stay on the application of the order of  the High Court of Allahabad. This Court ordered stay of the  operation of the order of the High Court on 04.04.2005. The issue now before us is whether the seniority list  published in 1996 is to be interfered with due to the order of  the High Court of Allahabad dated 12.11.2001. We heard Mr. Jaideep Gupta, learned senior counsel  appearing for the appellants and Mr. N.N. Goswami, learned  senior counsel, Dr. R.G. Padia, learned senior counsel, Mr.  A.S. Rawat, learned Additional Advocate General and Mr.  Gaurav Agrawal, learned counsel for the respondents. Mr. Jaideep Gupta, learned senior counsel appearing for  the appellants submitted that: ?       That there were no vacancies in the promotee quota  prior to 1991 and hence the High Court should not  have directed the State to grant retrospective  promotion and seniority.  ?       That the vacancies arose in the promotee quota of  Forest Rangers for the first time in 1987-88.  However, against the said vacancies, 124 Forest  Rangers, who had been promoted to the post of  Forest Rangers on an ad hoc basis between 1973-77  were regularized and adjusted on 30th November,  1989. Therefore, 124 vacancies arising between  1987 and 1990 in the promotee quota had been  filled up on a regular basis by the order dated  30.11.1989. Therefore, it is only in the year 1991  that a clear vacancy arose in the promotee quota.  As a result of this, even the persons who are  promoted in1991 could not be given seniority from  1991, but had to be pushed down and received their  seniority on different dates between 1991 and 1996  as and when the vacancy arose. Further it was  submitted that, if the High Court orders are given  effect to, then 356 Deputy Forest Rangers would  become entitled to promotion ahead of the direct  recruits far in excess of the quota. ?       That no retrospective promotion or seniority can be  granted from a date when an employee has not even  been borne in the cadre so as to be adversely  appointed validly in the meantime, as decided by  this court in the case of K.C. Joshi vs. Union of  India, 1992 Suppl (1) SCC 227.  ?       That the Seniority Rules of 1991 were not taken into  consideration by the High Court. Rule 8 of the  Seniority Rules, states that,  "Section 8 \026 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 so appointed shall not get  seniority of any earlier year, but shall get the seniority  of the year in which their appointments are made." The above stated Rules have overriding effect and hence

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seniority has to be consistent with the Rules ?       That the High Court has proceeded on the basis  that vacancies arose in 1987-88 and therefore, the  promotion should be given retrospective effect. It  was submitted that the date on which vacancies  arises cannot, without more, be made a basis of  giving retrospective promotion and seniority. Also  the High Court did not give deserved amount of  importance to the recommendations of the Public  Service Commission and the Rules laid down under  the Public Service Commission (Procedure) Rules,  1970. ?       That even if the High Court was of the opinion that  the seniority and promotion should be reworked,  the same should have referred back to the Public  Service Commission to ascertain who would be the  relevant person(s) entitled to promotion. More  crucially, in the second impugned order dated  12.04.2004, 45 persons were directed to be  promoted without taking into consideration their  relative position in the list prepared by the Public  Service Commission. By not referring the matter to  the PSC, incorrect persons were chosen by the High  Court for the purpose of promotion. ?       Concluding his submissions, the learned senior  counsel submitted that the seniority list under  challenge in the second writ petition was the  seniority list of the Uttaranchal State Government of  2002.  Such challenge could not have been made  before the Lucknow Bench of the Allahabad High  Court. He further submitted that none of the direct  recruits, who would be directly affected by an order,  were made parties to the writ petition. Therefore,  the High Court did not have the benefit of  competing arguments in the matter. Even though  the Principal Secretary of the State of Uttaranchal  was made a party, and that the said party was  never served.  Learned senior counsel, Dr. Padiya, appearing for respondent  Nos. 1 & 2 submitted as under: ?       That in the State of U.P. promotion from the post of Dy.  Forest Ranger to the post of Forest Ranger was held up  between 1976-77 to 1987-88 on regular basis. 124  Dy.Forest Rangers were promoted to the post of Forest  Ranger in the years 1973,1974,1975,1976,1977 & 1979  on ad hoc basis beyond the prescribed limit for  promotion. ?       That these ad hoc Forest Rangers were regularised in the  year 30.11.1988 and a requisition was sent for regular  promotion to the post of Forest Range Officer through  Public Service Commission, U.P., Allahabad vide letter  no.E-1851/1-2-4 dated 30.01.1991 for 410 vacancies.     The Forest Department issued the promotion order vide  F.O. No.E-23/2-2-4 dated 17.07.1991 for 356 posts and  subsequently for 3 posts again. ?       That all the promotion orders were made prospective to  the date of joining. It was further submitted that  promoted Range Officers were given their due seniority  under quota fixed for promotion, as is evident from para- 2 of Order No.E-3211/10 \02672, dated 08.06.1995. It was  further submitted that when the said seniority list dated  08.06.1995 was under preparation a mistake was  discovered that there was no vacancy of Rangers in  promotion quota and that there was no direct  recruitment of Forest Rangers from 1969-70 to 1976-77

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and these vacancies were utilized in favour of promotees  thus adjusting the promotees against the vacancies of  quota of Direct Recruit, in excess of the quota available  for promotees under Rules. While preparing the final  seniority list in question the promotees occupying  vacancies in excess of their quota has been pushed down  and the year wise vacancies of Direct Recruits have been  carried forward and upon the availability of Direct  Recruit they have been placed en bloc in the vacancies  available in the quota for Direct Recruits. ?       That U.P. Govt. Servant Seniority Rules 1991 was in force  when the promotion order of above 359 Dy. Forest  Ranger to the post of Forest Ranger was passed on  17.07.1991. The rule 8(3) proviso allows vacancies of  back years to be counted in the promotion but  specifically does not permit any promotion from back  year. Consequently the order dated 17.07.1991 was from  the prospective date of joining. ?       That an inadvertent error, oversight, made in the year  1991 came into the notice of department on 03.12.1994  and the same was referred to the State Govt. for  directions. The State Govt. gave guidelines vide letter no.  715/14-3-95-700 (236)/94 dated 11.09.1995 to give  promotees the benefit for seniority after following the  respective quota for promotion strictly.  ?       That accordingly a final seniority list was published in  1995 and it was updated in 1996 by deleting the name of  retired/promoted persons only.  The original seniority list  was published in 1995 and it was maintained in other  respects as it is. ?       That the appointing authority of the petitioner in the Writ  petition is PCCF, U.P., Lucknow who was served with the  judgment dated 26.11.2001 which found it fit to comply  with the judgment as it was passed with the respect to  petitioners of the writ petition. Only the judgment was  complied with vide E-120/2-2-4(1) dated 30.01.2002 by  the PCCF, U.P., Lucknow. ?       That after the compliance of the judgment a set of new  writ petitions and some pending writ petition were  clubbed by the High Court, Lucknow under Case No.366  (SB) 2002 and was decided on 12.04.2004 on the same  line. ?       That a set of contempt petition was moved by the  petitioners of the above bunch case specifically Contempt  Petition No 1617 (C) of 2004 C.B. Chhimwal Vs. Smt.  Surjit Kaur Sandhu & Ors. And Contempt Petition No.  1897 (C) of 2004 Chandra Shekhar Kargeti Vs.  K.Prasad and the date of personal appearance of officials  was fixed. Under these circumstances Principal chief  Conservator of Forest, U.P. Lucknow passed F.O. No. E- 114/2-2-4 dated 18.01.2005 and judgment dated  12.04.2004 was complied with under pressure of Court  order; giving notional promotions to the appellants.   Thereafter, a report was produced before the High Court  in Contempt Case No. 1617/C/2004 C.B. Chhimwal vs.  Smt. Surjit Kaur Sandhu by an affidavit dated  19.01.2005.  The High Court was not satisfied with the  compliance and passed further direction on 28.02.2005  in the aforesaid contempt petition.  The operative part of  the order dated 28.02.2005 is reproduced below:- "The apprehension genuinely appears to be  sustainable as the consequential benefit may be kept  confined to the seniority alone.  It is also not  understood as to why the phrase, ’notional promotion’  has been used by Chief Conservator Officer in his

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order of January 18, 2005 in the circumstances of  there being uncertainty on both the counts, the  Principal Chief Conservator of Forests is directed to  issue a corrigendum of the aforesaid order giving  details of the benefit that would be extended to the  petitioner in compliance of the judgment referred to  above."

"Accordingly, he is directed to file his  supplementary counter affidavit and a copy of the  modified order within fifteen days, list on 21.04.2005  for orders.  In case the uncertainty still remains, the  court would consider the petitioners request for  presence of the Principal Chief Conservator Officer  before this Court."

?       That Dy. Rangers who were promoted to the post of  Range Officers vide F.O. No.E-23/2-2-4 dated 17.07.1991  cannot be promoted with retrospective effect from a date  when they were not borne in the cadre.  Although in  compliance of the judgment and order passed by the  High Court on 12.04.2004 the respondent no.6 along  with other 44 Dy. Rangers has been notionally promoted  with effect from 01.07.1987.  A copy of the above  promotion order was produced before the High Court in  Contempt Case No. 1617/C/2004 C.B. Chhimwal vs.  Smt. Surjit Kaur Sandhu and Another.  But the Court  was not satisfied with the above compliance made by the  department and on 28.02.2005 passed the above orders  as mentioned above. ?        That the High Court granted the benefit of seniority to  respondent No.5 and other similarly situated persons  through connected writ petition with effect from  retrospective year 1979 to 1988 as the case may be,  while their actual promotions have been done in the year  1991 to the post of Forest Rangers.  It is further stated  that service rules do not provide any time bound period  for such promotion. ?        That the Commission might have selected the  respondent No.5 along with other similarly situated  persons against the vacancy of a particular year but  fixation of seniority has to be made in accordance with  the statutory provision of U.P. Govt. Servant Seniority  Rules 1991 framed under proviso to Art 309 of the  Constitution which strictly prohibits giving back year  seniority. ?       That no direct recruitment between the year 1969-70 to  1976-77, the then existing vacancies of Forest Rangers  were filled up by promotees of the department. As the  vacancies belonging to the direct recruit was occupied by  promotees between this period, the required number of  post of promotees exceeded.  Out of certain oversight the  number of vacancies shown as year wise vacancies sent  to the Public Service Commission against the vacancies  of earlier years was wrongly indicated.  At a later date at  the time of preparation of seniority list this inadvertent  mistake was noticed at the time of preparation of list on  08.06.1995 and immediately exercise was carried out to  check the inadvertent mistake/oversight.  The excess  number of promotees against the Forest Rangers was  later adjusted and carried forward as per provisions. As  per the above facts it is crystal clear that there was no  vacancy existing for the promotees after the year 1973-74  till 1986-87.  In the year 1987-88, 9 vacancies were  available after a long gap.  Similarly, the vacancies

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available during the year 1988-89, 1989-90 and 1990-91  are 31, 54 & 84 respectively.  It was out of these  vacancies, the adjustment of 124 Forest Rangers  regularized on 30.11.1989 were adjusted.  The name of  respondent no. 5 namely C.B. Chhimwal is much below  and therefore he was not included in the above list.  ?       That in view of the facts and circumstances stated above  and as per provisions of Law the respondent no.5 along  with other similarly situated 353 persons are not entitled  for back date seniority as well as consequential benefit as  they have not actually worked on the post of Range  Officer, therefore this Court may very kindly be pleased  to quash the judgment and order dated 12.04.2004  passed by the High Court of Allahabad, Lucknow Bench,  Lucknow in Writ Petition 366/SB/2002.  Learned AAG, (State of Uttaranchal) appeared for the state of  Uttaranchal, and submitted as under:- ?       Rule 8(1) of the Uttar Pradesh Government Servant  Seniority Rules, 1991 provides conferment of  seniority to an employee from a pervious date  provided that the date of such conferment along  with substantive appointment is mentioned in the  order of substantive appointment.  Similar  provision also exists in the Uttaranchal  Government Servant Seniority Rules, 2002.  Hence  it is clear that a person can be promoted with  retrospective effect.  It is also obvious that a person  cannot be borne in a cadre till he is promoted to  that cadre. ?       A vacancy to any source of appointment can be  ascertained only when that source of appointment  has a well defined share of posts in ratio with other  sources of appointment.  In the present case, as per  Rule 5(a) of Uttaranchal Subordinate Services  Rules, 1951, it is quite clear that there is no  fixed/well defined quota for the promoted source of  appointment.  Hence, allocation of year-wise  vacancies against promotion quota is not possible.   Consequently, the question raised by the appellant  that the seniority is reckoned from the date when  appointment was done to the post in substantive  capacity or from the date when the vacancy accrued  for the post in the cadre is irrelevant. ?       Though the State of Uttaranchal came into  existence on 9.11.2000 but the final  allotment/distribution of Forest Rangers’ between  Uttar Pradesh and Uttaranchal was done in  February, 2004 with effect from 9.11.2004 by the  Government of India under Section 73(1) of U.P.  Reorganisation Act, 2000 till the stage of this final  allotment, any dispute pertaining to their seniority  was obviously the matter of jurisdiction of the State  of Uttar Pradesh.   ?       Rule 8(3) of the Rules is not applicable in this case  because the appointments were not made by both  the direct and promoted sources of recruitment as a  result of one selection.  Moreover, definite quota is  not prescribed for the two sources of appointment.   ?       As per Rule 8 of the Seniority Rules, there is a  provision that if the appointment order specifies a  particular back date with effect from which a  person is substantively appointed, that date will be  deemed to be the date of order of substantive  appointment and in other cases, it will mean the  date of issuance of the order.  This implies that

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there is a provision of vacancies of being carried  over.  Moreover, it is also in the interest of natural  justice that employees are promoted from the date  they become eligible and the vacancy exits.   Otherwise, it would result in denying promotion to  them for no fault of theirs and only because of not  holding selection procedure on time for which they  cannot be held responsible.  As far as Rule 8(3) is  concerned, it applies to one selection made both for  promotion and direct recruitment, which is not the  case under consideration.   Mr. N.N. Goswami, learned senior Counsel appearing for  respondent no.5, Chhimwal, largely adopted the arguments of  the state counsel. It was submitted that, this is a simple case  of promotion of permanent Deputy Rangers against the  vacancies as and when it occurred and the respondent was  entitled for promotion. The High Court has correctly decided  the issue in question in W.P No. 610 (S/B) of 1996, which the  petitioners have accepted and did not prefer a petition for  Special Leave to appeal then, and the same issue cannot be  agitated after four years and after compliance has already  been done. The present petition against impugned order was  not decided on merit but was decided on the basis of parity.  The learned counsel submitted further that, the present case  squarely is covered by the judgment of this court in the case of  P.N. Premachandran v. State of Kerala & Ors  (2004) 1  SCC 245, where it was held that,  "\005.we do not find any irregularity in the matter of grant to  promote the respondents with effect from 1964 onwards\005.  in view, of the administrative lapse, the Departmental  Promotion Committee did not hold a sitting from 1964 to  1980. The respondents cannot suffer owing to such  administrative lapse on the part of the State of Kerala for no  fault on their, part. It is also not disputed, that in ordinary  course they were entitled to be promoted to the post of  Assistant Director, in the event, a Departmental Promotion  Committee had been constituted in due time. In that view of  the matter, it must be held that the State of Kerala took a  conscious decision to the effect that those who have been  acting in a higher post for a long time although on a  temporary basis, but were qualified at the time when they  were so promoted and found to be eligible by the  Departmental Promotion Committee at a later date, should  be promoted with retrospective effect. Such exercise of power  on the part of the State is not unknown in service  jurisprudence. Even assuming that such a power did not  exist in Rule 31 of the Rules the same can be traced to Rule  39 of the Rules, as noted hereinbefore\005."

He further relied on A. Janardhana v. Union of India, (1983)  3 SCC 601, where it was held as under: "But avoiding any humanitarian approach to the problem,  we shall strictly go by the relevant rules and precedents and  the impact of the Rules on the members of the service and  determine whether the impugned seniority lists is valid or  not. But, having done that we do propose to examine and  expose an extremely undesirable, unjust and inequitable  situation emerging in service jurisprudence from the  precedents namely, that a person already rendering service  as a promotee has to go down below a person who comes  into service decades after the promotee enters the service  and who may be a schoolian, if not in embryo, when the  promotee on being promoted on account of the exigencies of  service as required by the Government started rendering  service. A time has come to recast, service jurisprudence on

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more just and equitable foundation by examining all  precedents on the subject to retrieve this situation."

   We heard all the parties in detail and we have also perused  through all the materials on record before us. We feel that, the  appellants herein have a case and their arguments merit  favourable consideration. We feel that the impugned judgment dated 26.11.2001 of  the High Court has correctly appreciated that vacancies arose  in the year 1987-88, but have failed to appreciate that these  vacancies were filled by regularizing 124 persons who were  carrying on as Forest Rangers on an ad hoc basis. We also are  of the view that, if the orders of the High Court are to be given  effect to, then 356 Deputy Forest Rangers would become  entitled to promotion in excess of the quota. It is well settled  that promotion in excess of quota makes an employee an        ad hoc employee and seniority cannot be given to such  employees on the basis of ad hoc promotion. This was  observed by this court in a series of cases. In the case of  Keshav Chandra Joshi & Ors v. Union of India & Ors,  1992 Supp.1 SCC 272, this Court observed that,  "It is notorious that confirmation of an employee in a  substantive post would take place long years after the  retirement. An employee is entitled to be considered for  promotion on regular basis to a higher post if he/she is an  approved probationer in the substantive lower post. An  officer appointed by promotion in accordance with Rules and  within quota and on declaration of probation is entitled to  reckon his seniority from the date of promotion and the  entire length of service, though initially temporary, shall be  counted for seniority. Ad-hoc or fortuitous appointments on  a temporary or stop gap basis cannot be taken into account  for the purpose of seniority, even if the appointee was  subsequently qualified to hold the post on a regular basis. To  give benefit of such service would be contrary to equality  enshrined in Article 14 read with Article 16(1) of the  Constitution as unequals would be treated as equals. When  promotion is out side the quota, the seniority would be  reckoned from the date of the vacancy within the quota,  rendering the previous service fortuitous. The previous  promotion would be regular only from the date of the  vacancy within the quota and seniority shall be counted from  that date and not from the date of his earlier promotion or  sub-sequent confirmation. In order to do justice to the  promotees it would not be proper to do injustice to the direct  recruits. The rule of quota being a statutory one it must be  strictly implemented and it is impermissible for the  authorities concerned to deviate from the rule due to  administrative exigencies or expediency. The result of  pushing down the promotees appointed in excess of the  quota may work out hardship but it is unavoidable and any  construction otherwise would be illegal, nullifying the force  of statutory rules and would offend Articles 14 and 16(1).  Therefore, the rules must be carefully applied in such a  manner as not to violate the rules or equality assured under  Article 14 of the Constitution. This Court interpreted that  equity is an integral part of Article 14. So every attempt  would be made to minimise, as far as possible, inequity,  Disparity is inherent in the system of working out integration  of the employees drawn from different sources, who have  legitimate aspiration to reach higher echelons of service. A  feeling of hardship to one, or heart burning to either would  be avoided. At the same time equality is accorded to all the  employees."

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In Sanjay Kumar Sinha & Ors v. State of Bihar &  Ors, (2004) 10 SCC 734, this court observed that,  "6. In our view the first point regarding alleged non- availability of posts of ACFs for appointment of promotees at  the relevant time is sufficient to decide this appeal. On the  question of availability of posts the case of the appellants is  that posts were not available and in the absence of the posts  no appointments could be made. Still the respondents had  gone ahead with the appointments of the promotees. Such  appointments are mere fortuitous and cannot confer the  benefit of seniority from the date of appointment. The first  document relied upon in support of this contention is a letter  dated 23rd September, 1985 from the Chief Conservator,  Forests and Environment Department, Government of Bihar,  Patna. The letter directly deals with the question of  promotion of Forest Range Officer (FRO) to the post of  Assistant Conservator of Forests (ACF). The letter notes that  under Rule 3 of the Bihar Forest Service Rules, at least 50%  of the total existing vacancies have to be filled by promotion.  It goes on to add: "Presently there are 125 officers in the  cadre in the Bihar Forest Service, out of which 105 have  been promoted from the post of Range Officer and rest are  appointed by way of direct recruitment." According to this  letter as per the cadre strength of the posts of ACF in Bihar  State Forest Service, the promoted officers constituted 84%.  The Chief Conservator of Forests expressed his view in the  said letter that filling such large number of posts by way of  promotions affects the quality of service. The Chief  Conservator of Forests also notes that the State Service  Commission had already issued advertisement for filling 40  posts of ACFs by direct recruitment. He has opined that in  these circumstances it would not be proper to fill up the  posts of ACF by promotion. This letter highlights the  imbalance already existing in the service qua the posts of  ACF so far as appointments of direct recruitment and  promotees are concerned."

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

Further in the case of D.Ganesh Rao Patnaik & Ors v.  State of Jharkhand & Ors, (2005) 8 SCC 454, this court  opined that,  "\005. that the appointment of the contesting respondents was  not only contrary to Rules but was fortuitous in nature and  they can get no advantage of such fortuitous appointment  until a substantive vacancy was available in their quota,  which in fact became available much later some time in the  year 1993-94, which is long after the appointment of the  appellants. What is a fortuitous appointment has been

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explained in a Constitution Bench decision of this Court in  Rudra Kumar Sain v. Union of India (2000) 8 SCC 25. After  observing that the Rules in question did not define the terms  ’ad hoc’, ’stopgap’ and ’fortuitous’, which are in frequent use  in service jurisprudence, the Court referred to several  dictionaries. The meaning given to the expression ’fortuitous’  in Stroud’s Judicial Dictionary is ’accident or fortuitous  casualty’. This should obviously connote that if an  appointment is made accidentally, because of a particular  emergent situation, such appointment obviously would not  continue for a reasonably long period. In Black’s Law  Dictionary the expression ’fortuitous’ means ’occurring by  chance’, ’a fortuitous event may be highly unfortunate’. It  thus indicates that it occurs only by chance or accident,  which could not have been reasonably foreseen. In Oxford  dictionary the meaning given to the word ’fortuitous’ is -  happening by accident or chance rather than design. In our  opinion it will not be proper to hold that the promotion of the  contesting respondents was fortuitous as contended by  learned counsel for the appellants. It cannot be said that the  contesting respondents were promoted by accident or by  chance. Their promotion order was passed as there were  vacancies to the posts of Additional District and Sessions  Judges, though in the quota or direct recruits, but as no  recruitment from the said channel had been made for a long  time and sufficient number of candidates were not available,  the vacancies were filled in by giving promotion to members  of Bihar Civil Service (Judicial Branch). If promotion orders  had not been passed and the posts had not been filled in, the  judicial work in the districts would have suffered. However, it  is clear that having regard to the various orders passed on  the judicial side by the Patna High Court and the legal  position being well settled that the temporary posts have also  to be counted for determining the one-third quota of direct  recruits, the promotion given to the contesting respondents  was not in accordance with law. Instead of taking the harsh  step of rescinding their order of promotion the Patna High  Court, on the administrative side, took the decision to treat  them promoted against subsequent quota of promotees.  Therefore, the contesting respondents can under no  circumstances claim seniority over the appellants and the  view to the contrary taken by the Jharkhand High Court on  29th August, 2002 on administrative side and also in the  judgment and order dated 1st April, 2003, which is the  subject-matter of challenge in the present appeal, is wholly  erroneous in law."  

We also observe that, the High Court has granted  seniority without even reference to Seniority Rules of 8, and in  particular the proviso thereto, has not been taken into  consideration. The said rules have overriding effect and hence  seniority has to be consistent with the Rules. By virtue of Rule  8, Seniority can be given only from ’the date of substantive  appointment’. In this case, the promotees were appointed on  17.07.1991 and therefore cannot be given seniority over the  appellants who were substantively appointed prior in point of  time i.e. in 1990. It is specifically indicated in proviso to Rule 8  that, "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 so  appointed shall not get seniority of any earlier year, but shall  get seniority of the year in which their appointments are made."   These rules were in force in 1991 when the Deputy  Forest Rangers were promoted to the post of Forest Rangers  on 17.07.1991. Also it is well settled that seniority has to be

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decided on the basis of Rules in force on the date of  appointment.  It was observed by this court in the case of  State of Karnataka & Ors v. C. Lalitha, (2006) 2 SCC 747,  that,  "Service jurisprudence evolved by this Court from time to  time postulates that all persons similarly situated should be  treated similarly. Only because one person has approached  the court that would not mean that persons similarly  situated should be treated differently. It is furthermore well- settled that the question of seniority should be governed by  the rules. It may be true that this Court took notice of the  subsequent events, namely, that in the meantime she had  also been promoted as Assistant Commissioner which was a  Category I Post but the direction to create a supernumerary  post to adjust her must be held to have been issued only  with a view to accommodate her therein as otherwise she  might have been reverted and not for the purpose of  conferring a benefit to which she was not otherwise entitled  to."  

It was also observed in the case of Union of India v.  S.S.Uppal & Anr., (1996) 2 SCC 168 that,  "12. We are of the view that the question of seniority of  Uppal, the respondent No. 1, has to be determined by the  rules in force on the date of his appointment to IAS. The  fixation of seniority in the IAS follows appointment to the  service. The Year of Allotment in the IAS will have to be  determined according to the provisions of seniority rules  which are in force at the time of his appointment. The date of  occurrence of vacancy has really no relevance for the  purpose of fixation of seniority in the IAS. The fixation of  seniority is done only after an officer is appointed to IAS. The  Central Government is competent to amend the seniority  rules from time to time keeping in view the exigencies of  administration."  

Thus we feel that the High Court order granting  promotees seniority from 1987-88 suffers from infirmity and is  liable to be set aside. We are also of the view that no retrospective promotion or  seniority can be granted from a date when an employee has  not even been borne in the cadre so as to be adversely   appointed validly in the meantime, as decided by this court in  the case of K.C. Joshi & others vs. Union of India, 1992  Suppl (1) SCC 272 held that when promotion is outside the  quota, seniority would be reckoned from the date of the  vacancy within the quota rendering the previous service  fortuitous.  The previous promotion would be regular only  from the date of the vacancy within the quota and seniority  shall be counted from that date and not from the date of his  earlier promotion or subsequent confirmation.  In order to do  justice to the promotees, it would not be proper to do injustice  to the direct recruits.  The rule of quota being a statutory one,  it must be strictly implemented and it is impermissible for the  authorities concerned to deviate from the rule due to  administrative exigencies or expediency.  The result of pushing  down the promotees appointed in excess of the quota may  work out hardship, but it is unavoidable and any construction  otherwise would be illegal, nullifying the force of statutory  rules and would offend Articles 14 and 16(1) of the  Constitution. This Court has consistently held that no retrospective  promotion can be granted nor any seniority can be given on  retrospective basis from a date when an employee has not  even borne in the cadre particularly when this would adversely

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affect the direct recruits who have been appointed validly in  the meantime. In, State of Bihar & Ors v. 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 born 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 born in the cadre so as to adversely affect others. It is  well settled by several decisions of 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 interse seniority among the direct  recruits and promotees the Court applying the ratio of State  of Bihar v. Akhouri Sachindranath 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 where given  seniority over direct recruits could not be sustained and was  thereby set aside".          The High Court, in the impugned judgment dated  26.11.2001 has proceeded on the basis that vacancies arose in  1987-88 and, therefore, should be given retrospective effect.   The said submission, in our opinion, has no force and import.   In our view, the date on which vacancies arose cannot without  more be made a basis of giving retrospective promotion and  seniority.  In Jagdish Ch. Patnaik & Ors v. State of Orissa  & Ors, 1998(4) SCC 456, this Court observed: 32. The next question for 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? Mr. Banerjee’s contention  on this score is that since the appellant was recruited to the  cadre of Assistant Engineer in respect of the vacancies that  arose in the year 1978 though in fact the letter of  appointment was issued only in March 1980, he should be  treated to be a recruit of the year 1978 and as such would be  senior to the promotees of the years 1979 and 1980 and  would be junior to the promotees of the year 1978. According  to the learned Counsel since the process of recruitment  takes a fairly long period as the Public Service Commission  invites application, interviews and finally selects them  whereupon the Government takes the final decison, it would  be illogical to ignore the year in which the vacancy arose and  against which the recruitment has been made. There is no  dispute that there will be some time lag between the year  when the vacancy accrues and the year when the final  recruitment is made for complying with the procedure

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prescribed but that would not give a handle to the Court to  include something which is not there in the Rules of  Seniority under Rule 26. Under Rule 26 the year in which  vacancy arose and against which vacancy the recruitment  has been made is not at all to be looked into for  determination of the inter se seniority between direct recruits  and the promotees. It merely states that during the calendar  year direct recruits to the cadre of Assistant Engineer would  be junior to the promotee recruits to the said cadre. It is not  possible for the Court to import something which is not there  in Rule 26 and thereby legislate a new Rule of Seniority. We  are, therefore, not in a position to agree with the submission  of Mr. Banerjee, the learned senior counsel appearing for the  appellants on this score.         In the instant case, the High Court has relied upon the  letter of the Public Service Commission dated 06.07.1991 to  come to the conclusion that the PSC recommended the  appointments to be given to the promotees from the date on  which the vacancy arose.  Even apart from the fact that it has  now been conclusively established that the vacancy position  indicated to the PSC was not correct, there is nothing in the  said letter of the PSC which would lead to the conclusion that  it had recommended that appointment should date back to the  date of vacancies.  All that the letter indicates is that the  Commission had considered the fitness and suitability of the  candidates year by year taking into consideration the  vacancies that had allegedly arisen in the concerned year.   This is only an exercise for the purpose of arriving at the name  of the employees to be recommended which had nothing to do  with the date on which the appointment was to be given.  The  reliance placed by the High Court on the U.P. promotion by  selection in consultation with the Public Service Commission  (Procedure) Rules, 1970 and, in particular, Rules 13 and 21  also does not mandate that the appointment has to be made  on the date on which the vacancy arose.  It confirms that while  selecting the persons the Government has to send requisition  year-wise and the PSC to make its recommendation year-wise.   Again this does not lead to a conclusion as to the date on  which appointment should take effect.           An alternative argument was made by Mr. Gupta to the  effect that even if the High Court was of the opinion that the  seniority and promotion should be re-worked the same should  have referred back to the PSC to ascertain who would be the  relevant persons entitled to promotion.  The High Court did  not accept that PSC’s recommendation in its entirety since in  its view vacancies only arose in 1987-88 and not in 1979-80  as indicated by the PSC.          Likewise, in the second impugned order dated  12.04.2004, 45 persons were directed to be promoted without  taking into consideration their relative position in the list  prepared by the PSC.  By not referring the matter to the PSC,   incorrect persons were chosen by the High Court for the  purpose of promotion.  This submission was, however, made  by learned senior counsel without prejudice to the submission  that the entire basis for directing retrospective promotion and  seniority was erroneous and there were no vacancies at all.           The second impugned order dated 12.04.2004 is further  vitiated for the following reasons:- a)      Forum:  The seniority list under challenge in the  second writ petition was the seniority list of the Uttaranchal  State Government of 2002 and such challenge could not have  been made before the Lucknow Bench of the Allahabad High  Court.  b)      Parties:        None of the direct recruits who would be  directly affected by order cannot were made parties to the writ

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petition.  Therefore the High Court did not have the benefit of  competing arguments in the matter.  Even though, the  Principal Secretary of the State of Uttaranchal was made a  party, the said party was never served.  The only respondent  which was heard was the State of U.P. which had no stake in  the matter at all since all of the writ petitioners before the  Lucknow Bench of the Allahabad High Court where employees  of the State of Uttaranchal on the relevant date.  It is,  therefore, evident that the relevant material was not placed  before the Allahabad High Court for the purpose of deciding  the writ petition.  Accordingly, the permission had to be taken  from this Court by the present appellants to prefer the SLPs.          We, therefore, have no hesitation in setting aside the final  judgment and order dated 12.04.2004 passed by the High  Court of Judicature at Allahabad, Lucknow Bench in Writ  Petition No. 366 SB of 2002 whereby the High Court allowed  the writ petition filed by C.B. Chhimwal and allow the Civil  Appeal No.       of 2006 arising out of SLP (C) No. 7375 of  2005.          Likewise, we allow the Civil Appeal No.             of 2006  arising out of SLP (C) No. 1860 of 2006 and set aside the  impugned judgment and order dated 26.11.2001 passed in  Writ Petition No. 610(S/B) of 1996 by the High Court of  Allahabad at Lucknow Bench.          However, we are making it clear that this judgment of  ours will not adversely affect the benefits of the order which  have been enjoyed by any of the promotees who have retired  from service. The division of seniority list, however, has  serious and lasting consequences insofar as the appellants are  concerned which of crucial importance as far as the  promotional prospects of the appellants are concerned.          We, therefore, direct the State of Uttaranchal through its  Principal Secretary (Forest) Dehradun, Uttaranchal to revise  the seniority list of direct recruits in line with the observations  and conclusions made in this judgment by us within 2 months  from the date of receipt of this judgment.  No costs.