1. Appellants argued promotions beyond quota and absence of vacancies preclude seniority; respondents argued vacancies accrued and entitle promotees to retrospective seniority. (Para 32 )
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2006 Supreme(SC) 893
Dr. AR. Lakshmanan & Tarun Chatterjee
Uttaranchal Forest Rangers Asson. (Direct Recruit) & Ors PETITIONER
Versus
State of U.P. and Ors RESPONDENT
Appeal (civil) 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)
Decided on: 25/09/2006
Seniority cannot be granted retrospectively from a date before an employee entered the cadre, especially for promotions made in excess of quota, as such appointments are fortuitous and cannot adversely affect the seniority of validly appointed direct recruits.
Headnote:(A) Government Servant Seniority Rules - Rule 8 - Constitution of India - Articles 14 and 16(1) - Retrospective seniority and promotion - Seniority cannot be granted from a date when an employee had not yet been borne in the cadre, particularly when such a grant adversely affects direct recruits appointed validly in the interim. (Paras 48, 54)
(B) Quota and Ad-hoc appointments - Promotion in excess of prescribed quota results in ad-hoc or fortuitous appointment - Such appointments do not confer seniority from the date of appointment but only from the date a substantive vacancy within the quota becomes available - Treating ad-hoc service as regular would violate the principle of equality under Articles 14 and 16(1). (Paras 24, 25, 26)
(C) Vacancy vs. Appointment Date - The date on which a vacancy arises cannot be the sole basis for granting retrospective seniority unless provided by rules - Seniority is governed by the rules in force on the date of substantive appointment. (Paras 43, 46)
Facts of the case:
Direct recruits were appointed to a specific cadre in 1990. Certain employees were subsequently promoted to the same post in 1991. A seniority list published in 1996 placed the direct recruits senior to the promotees as the former were substantively appointed earlier. The promotees challenged this in the High Court, which directed that they be granted retrospective seniority from the dates the vacancies arose (some dating back to 1979), thereby placing them senior to the direct recruits.
Findings of Court:
The court found that the High Court failed to consider that the vacancies identified in 1987-88 had already been filled by regularizing employees previously serving on an ad-hoc basis. Consequently, promotions made beyond the quota were fortuitous and cannot be used to claim seniority over direct recruits. Furthermore, the statutory rules in force at the time of appointment explicitly prohibit granting seniority of an earlier year when appointments are made in subsequent years due to a shortfall in the prescribed quota.
Issues: Whether retrospective seniority can be granted from the date a vacancy arises rather than the date of substantive appointment, and whether promotions made in excess of the prescribed quota can confer seniority over validly appointed direct recruits.
Ratio Decidendi: Seniority must be determined by the rules in force on the date of appointment. Retrospective promotion or seniority cannot be granted from a date before an employee is borne into the cadre if it adversely affects those validly appointed. Promotions made outside the statutory quota are fortuitous; such service cannot be counted for seniority, as doing so would violate Articles 14 and 16(1) of the Constitution by treating unequals as equals.
Result: Appeals allowed.
Legal Category Hierarchy
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administrative law
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public employment
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seniority
- seniority list
- seniority rules
- inter se seniority between direct recruits and promotees
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promotion
- promotion beyond quota
- retrospective promotion
-
seniority
-
public employment
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constitutional law
-
equality in public employment
- articles 14 and 16
-
equality in public employment
-
practice and procedure
-
writ jurisdiction
- territorial jurisdiction
- necessary parties
-
writ jurisdiction
Table of Contents
JUDGMENT
Dr. AR. Lakshmanan, J.
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.
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 Range
