2009 Supreme(SC) 1748

2009(8) Supreme
SUPREME COURT OF INDIA
Harjit Singh Bedi and B.S. Chauhan, JJ.
Amarjeet Singh & Ors.—Appellants
Versus
Devi Ratan & Ors.—Respondents
CIVIL APPEAL NOs. 5790-92 of 2002
With SLP(C) No. 9615 of 2002
Decided on : 18-11-2009

IMPORTANT POINT
No employee can claim seniority prior to the date of his birth in the cadre.

Headnote:U.P. Excise Service (Class-II) Rules, 1970 – U.P. Assistant Excise Commissioners Service Rules, 1992 – Appeals against order passed by High Court by which it allowed the writ petitions filed by the respondents quashing the seniority list issued by the State Government for the Excise Inspectors – Admittedly, respondents were over and above the appellants in the seniority list of Excise Inspectors – The rules of 1992 were amended in the year 1994, changing the criterion for promotion from “merit” to “seniority subject to rejection of unfit” – Forty two posts of ABC were to be filled up from the Excise Inspectors, as no Excise Superintendent was available for being considered for promotion to the post of AEC – The State Government wanted to fill up the said vacancies by applying the amended rules – On being challenged by some of the appellants, High Court held that the vacancies which occurred prior to the amendment of 1992 Rules, had to be filled up according to unamended rules – The operation of the judgment and order of High Court was stayed by this Court making it crystal dear that promotions so made under the amended rules would be subject to the decision in special leave petition – Accordingly, 61 Officers/respondents were promoted – Subsequently, this Court dismissed the SLP vide order dated 18.8.1998 in limine – The officers/respondents so promoted were not reverted - The DPC was held on 19.12.1998 to fill up said 42 vacancies, but only 30 candidates/appellants were found eligible to be promoted to the post of AEC – The respondents were found unsuitable - In order to give the said respondents a second chance, the State Government carried forward the remaining 12 vacancies and directed to fill up the same under the amended Rules, and for that purpose another DPC was convened on 22.1.1999 and they were promoted on the basis of different criterion – Promotions were made with retrospective effect determining the yearwise vacancies - Appellants had been given promotion notionally against the vacancies, occurred in the recruitment year 1995 while the respondents were promoted notionally against the vacancies of the recruitment years 1996 and 1997 – Thus, the High Court committed an error while recording the finding of fact that both set of officers had been promoted notionally from one and the same date – Admittedly, promotions were not made with effect from one and the same date – Appellants and respondents were promoted against the vacancies which had occurred in different recruitment years under different Rules and on different criterion – Thus, the respondents would rank below the appellants in seniority – Hence there could be no justification to hold that their inter se seniority in the feeding cadre would be relevant for determining the seniority of. AECs – More so, had the interim order not been passed by this Court; appellants could have been promoted under the unamended rules much earlier – Thus, they were entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised – The appellants had been promoted with an earlier date, thus, were bound to be senior than respondents who had been promoted with respect from a later date – No employee can claim seniority prior to the date of his birth in the cadre – Impugned judgment set aside – Appeals allowed (Paras 29, 30)

       Facts of the Case :

        Present appeals have been filed against judgment and order ‘passed by the High Court by which it allowed the writ petitions filed by the respondents quashing the seniority list issued by the State Government for the Excise Inspectors.

       Findings of the Court :

        The rules of 1992 were amended in the year 1994, changing the criterion for promotion from “merit” to “seniority subject to rejection of unfit”. Forty two posts of ABC were to be filled up from the Excise Inspectors, as no Excise Superintendent was available for being considered for promotion to the post of AEC . The State Government wanted to fill up the said vacancies by applying the amended rules. On being challenged by some of the appellants, High Court held that the vacancies which occurred prior to the amendment of 1992 Rules, had to be filled up according to unamended rules. The operation of the judgment and order of High Court was stayed by this Court making it crystal dear that promotions so made under the amended rules would be subject to the decision in special leave petition . Accordingly, 61 Officers/respondents were promoted . Subsequently, this Court dismissed the SLP vide order dated 18.8.1998 in limine. The officers/respondents so promoted were not reverted. The DPC was held on 19.12.1998-to fill up said 42 vacancies, but only 30 candidates/appellants were found eligible to be promoted to the post of AEC. The respondents were found unsuitable . In order to give the said respondents a second chance, the State Government carried forward the remaining 12 vacancies and directed to fill up the same under the amended Rules, and for that purpose another DPC was convened on 22.1.1999 and they were promoted on the basis of different criterion. Promotions were made with retrospective effect determining the yearwise vacancies. Appellants had been given promotion notionally against the vacancies, occurred in the recruitment year 1995 while the respondents were promoted notionally against the vacancies of the recruitment years 1996 and 1997. Thus, the High Court committed an error while recording the finding of fact that both set of officers had been promoted notionally from one and the same date. Admittedly, promotions were not made with effect from one and the same date. Appellants and respondents were promoted against the vacancies which had occurred in different recruitment years under different Rules and on different criterion. Thus, the respondents would rank below the appellants in seniority. Hence there could be no justification to hold that their inter se seniority in the feeding cadre would be relevant for determining the seniority of. AECs. More so, had the interim order not been passed by this Court; appellants could have been promoted under the unamended rules much earlier. Thus, they were entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised . The appellants had been promoted with an earlier date, thus, were bound to be senior than respondents who had been promoted with respect from a: later date. No employee can claim seniority prior to the date of his birth in the cadre . Impugned judgment was set aside. Appeals were allowed

       Result : Appeals allowed