2006 Supreme(SC) 894

2006(7) Supreme 469
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan and Tarun Chatterjee, JJ.
Uttaranchal Forest Rangers’ Asson. (Direct Recruits) & Ors.—Appellants
versus
State of U.P. & Ors.—Respondents
Civil Appeal No. 4249 of 2006
(Arising out of SLP (C) No. 7375/2005)
With
Civil Appeal No. 4250 of 2006
(Arising out of SLP (C) No. 1860/2006)
Both decided on 25-9-2006
Counsel for the Parties :
For the Appellants : Jaideep Gupta, Sr. Advocate, Pranay Ranjan and Praneet Ranjan, Advocates.
For the Respondents : A.S. Rawat, A.A.G. (State of Uttaranchal), N.N. Goswami, Dr. R.G. Padiya, Sr. Advocates, K.S. Rana, Ram Kishore Singh Yadav, Kamlendra Mishra, Jatinder Kumar Bhatia and Gaurav Agrawal, Advocates.

IMPORTANT POINTS
1. Seniority has to be decided on the basis of Rules in force on the date of appointment.
2. 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.
3. 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.
4. When promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous.

Headnote:SERVICE LAW—Uttar Pradesh Government Servant Seniority Rules, 1991—Rule 8(1)—Public Service Commission (Procedure) Rules, 1970—Conferment of seniority—Promotion in excess of quota—Validity—During the period 1969-1979, Government of U.P. promoting Deputy Forest Rangers on ad hoc basis to the post of Forest Rangers—There was no direct appointment to the post of Forest Rangers—On 30-11-1989, by a Government Resolution, 124 persons promoted on ad hoc basis were regularized and accommodated by the year 1991—Appellants were appointed on the post of Forest Rangers by direct recruitment on various dates in year 1990—Appointments made were within the direct recruitment quota—However, 410 persons were recommended for promotion to the post of Deputy Forest Rangers though there was no vacancy in the promotee quota of Forest Rangers—Respondents were promoted w.e.f. the day they took charge—In the seniority list of Forest Rangers, appellants were placed senior to respondents—Respondents were adjusted till 1996 since there was only one vacancy in the promotee quota—Writ petitions filed by respondents challenging seniority list—Whether High Court was justified in directing that seniority list be corrected by showing the promotees as senior to direct recruits—(No)—High Court of Allahabad was not justified in allowing claims of all writ petitioners and ordering retrospective application of the order.

       Held : 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.(Para 25)

       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 decided on the basis of Rules in force on the date of appointment.(Paras 28 and 29)

       Thus we feel that the High Court order granting promotees seniority from 1987-88 suffers from infirmity and is liable to be set aside.(Para 31)

       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.(Para 32)

       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 affect the direct recruits who have been appointed validly in the meantime.(Para 33)

       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.(Para 34)

       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. (Para 35)

       (ii) SERVICE LAW—Promotion—No retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.(Paras 32 and 33)

       (iii) SERVICE LAW—Seniority—Rule of quota being a statutory one, it must be strictly implemented—It is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency.(Para 32)