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SUPREME COURT OF INDIA
DHANANJAYA Y CHANDRACHUD, INDIRA BANERJEE, JJ.
Ganga Vishan Gujrati & Ors – Appellants
Versus
State of Rajasthan & Ors – Respondents
Civil Appeal No.6007 of 2019 (@SLP (C) No. 31825 of 2018) Civil Appeal No. 6009 of 2019 (@SLP (C) No. 154 of 2019) Civil Appeal No. 6008 of 2019 (@SLP (C) No. 153 of 2019)
Decided On : 21-08-2019
(a) Interpretation of statute - Expressions “except as otherwise provided in these rules” and “notwithstanding anything contained in these rules” - Distinction - Former an indication of subservience - Latter an indication of overriding effect. (Para 11)
(b) Rules 1957 - Rule 284(ii) quota of direct recruitment abolished leaving 80 % for promotion and 20% for limited competitive examination - Both sources applied to eligible candidates of feeder cadre - Promotion through limited competitive examination cannot be equated with direct recruitment - Promotion on basis of limited competitive examination held to be a means of accelerated promotion. (Para 23)
(c) Rajasthan Land Revenue (Land Records) Rules 1957 - Rule 347-A - Other enumerated Rules to apply mutatis mutandis “except as otherwise provided in these rules” - Other rules will not have overriding effect - Held, therefore that a specific provision is made in 1957 Rules will prevail. (Para 24)
(d) Rajasthan Subordinate Services (Recruitment and other Service Conditions) Rules 1960 - Rule 9 - Providing for determination of yearwise vacancy and allocation of vacancies to different methods of recruitment - Rule 9, however, not providing for deemed seniority or a deemed date of promotion. (Para 25)
(e) Rajasthan Land Revenue (Land Records) Rules 1957 - Rules, 1957 - Rule 284(ii) and Rule 35, Rules, 2001 - Rule 35 contemplating promotion by DPC - Relating seniority to year of vacancy and eligibility of candidate because DPC may not be held promptly - Rule 284 providing for limited competitive examination eligibility for which is 5 years continuous service - No DPC - Hence provision of Rule 35 cannot be extended to recruitment on basis of limited competitive examination. (Para 30)
(f) Rajasthan Land Revenue (Land Records) Rules 1957 - Rules, 1957 - Rule 284(ii) and Rule 35, Rajasthan Subordinate Services (Recruitment and Other Service Conditions) Rules 2001 - Application of rule 35 to recruitment on basis of limited competitive examination may result in a situation where a candidate secures seniority with effect from an anterior date on which he or she was neither borne on the cadre nor was qualified - This is impermissible because retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. (Para 30)
(g) Rajasthan Land Revenue (Land Records) Rules 1957 - Rules, 1957 - Rule 171-A - Specifically contemplating till 2014 (before amendment) seniority to be determined from date of continuous officiation - Basis changed in 2014 from continuous officiation to recruitment year of promotion - Held appellants will not be governed by amended rule - Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre. (Para 34)
(h) Rajasthan Land Revenue (Land Records) Rules 1957 - Rule 347-B - rules referred to in the entries given overriding effect - Rajasthan Services (Recruitment by promotion against vacancies of earlier years) Rules 1972 is one such Rule - Provision for direct recruitment and promotion through recommendation of DPC - In absence of DPC recommendation, promotion cannot be made - Instantly no direct recruitment at all - Held, Rule 347-B and Rules 1972 not applicable to present case. (Para 35)
(i) Rajasthan Land Revenue (Land Records) Rules 1957 - Rule 171-A(2) - Interpretation - Pre-amendment - Seniority on basis of continuous officiation - Post amendment - Seniority on basis of the recruitment year of promotion - Amendment held not clarificatory- Hence, present case will governed by pre-amendment provision. (Para 36)
Facts of the case:
The appellants were appointed as Patwaris in the Revenue Department on 21 December 1993. On 17 June 2011, an advertisement was issued by the State of Rajasthan for holding a departmental examination to select candidates for 93 vacancies (relating to years 2008-09 and 2009-10) in the post of Land Records Inspector. A fresh advertisement dated 28 January 2013 notified an increase in the number of vacancies to 155, including 67 vacancies for 2010-11.
On 16 May 2013, the appellants appeared for the departmental examination and were declared successful for the post of LRI. On 7 November 2013, a provisional seniority list was issued from 1 April 2012 in which names of the appellants were not included. On 31 March 2014, the appellants were promoted as LRIs in pursuance of which they have been working on that post. The names of the appellants did not find mention in the seniority list as on 1 April 2012. Orders were issued on 11 June 2015, 6 July 2015 and 6 August 2015 promoting LRIs to the post of Nayab Tehsildar, treating them to have been appointed on the post of LRI against the year of promotion in which the vacancies arose. The appellants were aggrieved by the denial of the benefit of this criteria. A representation was submitted on 14 September 2015 to the Chairman of the Board of Revenue for granting the appellants the benefit of the notification dated 8 October 2014 and placing them in the seniority list against the recruitment year. A final seniority list, computing seniority as on 1 April 2012 was issued on 12 May 2016 in terms of Rule 171-A(2). According to the appellants, their names were not included in the seniority list despite the fact that the recruitment year was 2010-11.
The Single Judge allowed the Writ Petition by setting aside the action of the State in not regarding the year of promotion of those, including the appellants, who were selected pursuant to the advertisements dated 17 June 2011 and 28 January 2013 against vacancies for 2008-09, 2009-10 and 2010-11. The State was accordingly directed to place persons selected in the final seniority list issued on 12 May 2016 against the recruitment year of promotion with consequential benefits.
The judgment of the Single Judge has been reversed in appeal by the Division Bench of the High Court.
Finding of the Court:
Claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen.
Result: Appeals dismissed.
JUDGMENT :
DHANANJAYA Y CHANDRACHUD, J.
1. Adjudicating on a vexed issue of service jurisprudence, a Division Bench of the High Court of Judicature of Rajasthan allowed a batch of Special Appeals and reversed a judgment of the learned Single Judge dated 19 April 2018. The consequence of the judgment of the Division Bench dated 6 August 2018 is that the writ petition instituted by the appellants under Article 226 of the Constitution stands dismissed. This has given rise to the present batch of appeals. Since similar issues arise, all the appeals were heard together.
2. The appellants were appointed as Patwaris in the Revenue Department on 21 December 1993. On 17 June 2011, an advertisement was issued by the State of Rajasthan for holding a departmental examination to select candidates for 93 vacancies in the post of Land Records Inspector[“LRI”]. The vacancies related to the years 2008-09 and 2009-10. A fresh advertisement dated 28 January 2013 notified an increase in the number of vacancies to 155, including the vacancies for 2010-11. In response to a query made on 24 December 2014 under the Right to Information Act 2005, a year-wise bifurcation of the 155 vacancies was provided indicating that:
• 67 vacancies arose in 2008-09;
• 26 vacancies arose in 2009-10; and
• 62 vacancies arose in 2010-11.
3. On 16 May 2013, the appellants appeared for the departmental examination and were declared successful for the post of LRI. On 7 November 2013, a provisional seniority list was issued from 1 April 2012. The grievance of the appellants is that though (in their submission) they were appointed against vacancies that arose in 2008-09, 2009-10 and 2010-11, their names were not included in the provisional seniority list. On 31 March 2014, the appellants were promoted as LRIs in pursuance of which they have been working on that post. On 12 March 2015, the Rajasthan Revenue Board[“Board”] issued a communication to the Collector to prepare a list of persons who were appointed as LRIs against vacancies for the year 2009-10. The names of the appellants did not find mention in the seniority list as on 1 April 2012. Orders were issued on 11 June 2015, 6 July 2015 and 6 August 2015 promoting LRIs to the post of Nayab Tehsildar, treating them to have been appointed on the post of LRI against the year of promotion in which the vacancies arose. This was in terms of a notification dated 8 October 2014 by which Rule 171-A of the Rajasthan Land Revenue (Land Records) Rules 1957[“1957 Rules”] was amended to change the criterion for determining seniority from the date of continuous officiation on the post of LRI to the recruitment year of promotion. The appellants were aggrieved by the denial of the benefit of the notification dated 8 October 2014. Aggrieved by what was perceived as differential treatment, a representation was submitted on 14 September 2015 to the Chairman of the Board of Revenue for granting the appellants the benefit of the notification dated 8 October 2014 and placing them in the seniority list against the recruitment year. A final seniority list, computing seniority as on 1 April 2012 was issued on 12 May 2016 in terms of Rule 171-A(2). According to the appellants, their names were not included in the seniority list despite the fact that the recruitment year was 2010-11.
4. This led to the institution of a Writ Petition[SB Civil Writ Petition No 6530/2016] by the appellants before the High Court of Rajasthan seeking a direction for the declaration of appointments; promoting them against the recruitment year of promotion and placing them in the seniority list issued on 12 May 2016 against the recruitment year of promotion with consequential benefits. On 24 April 2017, another final seniority list was issued determining seniority as on 1 April 2014. The appellants claim that they were placed below persons who were promoted against vacancies which arose after the year of vacancies against which the appellants were promoted. During the pendency
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