How is seniority fixed between direct recruits and promotees appointed in the same recruitment year under U.P. Rules?

Leave granted.

The appeals challenge the judgment and order dated 4th September 2014, passed by the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in Special Appeal No. 625 of 2008 and other connected Appeals, thereby, while upholding the order passed by the learned Single Judge, modifying it to the extent that the seniority list shall be prepared by applying the rota system to direct recruits and promotees appointed in one recruitment year.

The facts, in brief, giving rise to the present appeals are as under:

We have heard Mr. S.R. Singh, learned Senior Counsel appearing on behalf of the appellant and Mr. Pradeep Kant, learned Senior Counsel, Mr. Rakesh K. Sharma, and Mr. Tanmaya Agarwal, learned counsel appearing on behalf of the respondents.

Mr. S.R. Singh, learned Senior Counsel, submitted that the direct recruits were appointed as ACOs on 18th August 1997, whereas the promotees came to be promoted vide order dated 16th December 1997. It is, therefore, submitted that the promotees had not even entered the cadre of ACOs when the appellant was appointed. It is submitted that, since the appellant was appointed much prior to the date on which the promotees were promoted, the 2005 seniority list rightly placed the direct recruits (including the appellant herein) above the promotees. It is submitted that the learned Single Judge as well as the Division Bench of the High Court have grossly erred in setting aside the said seniority list.

Mr. Singh further submitted that the 1991 Rules had an overriding effect, and in view of Rule 8 of the 1991 Rules, the seniority of persons appointed has to be determined only from the date of the order of their substantive appointments. It is submitted that the 1991 Rules will have no application to the facts of the present case. It is submitted that the finding of the learned Judges of the Division Bench that, if the selection is made in one recruitment/selection year the rota rules will apply, is without any basis.

Mr. Singh further submitted that if the judgments of the learned Single Judge and the Division Bench of the High Court are upheld, it would amount to permitting the promotees to get seniority retrospectively, which is not permissible in view of the law as laid down by this Court in the case of Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and others vs. State of U.P. and others¹.

Mr. Pradeep Kant, learned Senior Counsel, on the contrary, submits that the learned Single Judge as well as the Division Bench of the High Court have rightly held that since both the promotees as well as the direct recruits have entered the cadre of ACOs in the same recruitment/selection year, i.e. 1997-98, no interference would be warranted with the impugned order.

For considering the rival submissions of the parties, it will be apposite to refer to the relevant Rules.

Rule 8 of the 1991 Rules reads thus:

The perusal of sub-rule (1) of Rule 8 of the 1991 Rules would reveal that, where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the said sub-rules, be determined from the date of the order of their substantive appointments. It further provides that, if two or more persons are appointed together, then, it shall be in the order in which their names are arranged in the appointment order.

Sub-rule (3) of Rule 8 of the 1991 Rules would be most important. It provides that, where appointments are made both by promotion and by direct recruitment on the result of any one selection, the seniority of promotees vis-à-vis direct recruits shall be determined in a cyclic order, i.e. the first being a promotee, so far as may be, in accordance with the quota prescribed for the two sources.

The illustration given is clear that, where the quota of promotees and direct recruits is in the proportion of 1:1, the first post will go to a promotee; and the second post will go to a direct recruit and so on, and where the quota is in the proportion of 1:3, then the first post will go to a promotee, and second to fourth posts will go to direct recruits, the fifth post will go to a promotee and sixth to eighth posts will go to direct recruits, and so on. The proviso thereto clarifies that, where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of the quota shall be pushed down, for the purposes of seniority, to a subsequent year or years in which there are vacancies in accordance with the quota. Similarly, it provides that, where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in a 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. It further provides that, where in accordance with the service rules, the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointments in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota.

It will also be relevant to note that, in the 1991 Rules, the term recruitment/selection year is not defined.

On 25th March 1992, the 1992 Rules were notified. The perusal of the 1992 Rules would reveal that they have been made in supersession of all existing Rules and Orders on the subject. Clause (m) of Rule 3 of the 1992 Rules defines “Year of recruitment’ to mean, a period of twelve months commencing from the first day of July of a calendar year.

Rule 5 of the 1992 Rules provides that, insofar as posts of ACOs are concerned, 67% posts would be filled by direct recruitment through the Uttar Pradesh Subordinate Services Selection Commission and 33% posts by promotion from amongst the substantively appointed Consolidators and Rectangulators through the Selection Committee. Rules 18 and 19 of the 1992 Rules would be vital, which read thus:

Rule 18 of the 1992 Rules mandates that, if in any year of recruitment, appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates from the relevant list, in such manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion.

Sub-rule (2) of Rule 19 of the 1992 Rules specifically provides that, where in any year of recruitment, appointments are to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 18. Sub-rule (3) of Rule 19 of the 1992 Rules further provides that, if more than one orders of appointments are issued in respect of any one selection, a combined order shall also be issued, mentioning therein the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. It further provides that, if the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the cyclic order referred to in Rule 18.

The position is thus clear. The 1992 Rules, which are framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, are in supersession of all existing Rules and Orders on the subject. Insofar as the contention of Mr. S.R. Singh, learned Senior Counsel, on Rule 3 of the 1991 Rules is concerned, the said Rules reads that, “these rules shall have effect notwithstanding anything to the contrary contained in any other service rules made hereto before”. As such, the 1991 Rules will have effect only if there is anything inconsistent therein with any of the provisions in the earlier service rules. This submission is without merit inasmuch as the 1992 Rules specifically state that they are in supersession of all existing rules and orders.

This Court in the case of Pawan Pratap Singh and others vs. Reevan Singh and others² observed thus:

This Court in the said case held that the effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. This Court further held that the inter se seniority in a particular service has to be determined as per the service rules. It held that the date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. It further held that any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It further held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It held that the seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao and others³ has approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).

It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A “year of recruitment” has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998.

Admittedly, the direct recruits were appointed on 18th August, 1997, whereas the promotees were appointed on 16th December, 1997, i.e. both were appointed in the selection/recruitment year 1997-98. In view of sub-rule (2) of Rule 19 of the 1992 Rules, where the appointment of both the direct recruits and of the promotees were to be made in the same year of recruitment, regular appointments should not have been made unless selections were made from both the sources and a combined list was prepared in accordance with Rule 18 of the 1992 Rules. In view of sub-rule (3) of Rule 19 of the 1992 Rules, since the appointments in the same selection/recruitment year were made both by direct recruitment and by promotion, the names were required to be arranged in accordance with the cyclic order referred to in Rule 18 of the 1992 Rules. In view of Rule 18 of the 1992 Rules, a combined select list has to be prepared by taking the names of candidates from the relevant list, as per the quota for the direct recruits. In other words, the first name in the list was required to be that of a promotee.

A combined seniority list was initially prepared in accordance with the said provisions of the 1992 Rules on 18th September 2003. However, it had been erroneously changed on 29th July, 2005, thereby giving undue benefits to the direct recruits over the promotees. Such a list was in contravention of the provisions of Rules 18 and 19 of the 1992 Rules. When the 1992 Rules specifically emphasized that, where in any year of recruitment, appointments were to be made both by direct recruitment and by promotion, regular appointments could not have been made unless selections were made from both the sources and a combined list was to be prepared in accordance with Rule 18 of the 1992 Rules, the seniority list dated 29th July 2005, which provided a higher seniority to the direct recruits, is, for the aforesaid reasons, not sustainable in law.

Insofar as the judgment of this Court in the case of Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and others (supra) is concerned, the same would not be applicable to the facts of the present case. In the said case, the promotees, who were promoted in 1991, claimed seniority over the direct recruits who were substantively appointed at a prior point of time in 1990. In any case, the 1992 Rules did not fall for consideration in the said case.

As already discussed herein above, we are of the considered view that, in view of Rules 18 and 19 of the 1992 Rules, the seniority list dated 29th July 2005, impugned before the High Court, is not sustainable in law.

In the result, we find no merit in the present appeals. The appeals deserve to be dismissed and, as such, are dismissed.

Pending applications, if any, shall stand disposed of. No costs.