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ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : SHRI NARAYAN SHUKLA AND SHEO KUMAR SINGH-I, JJ.
SHANTI SHEKHAR SINGH ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition (S/B) Nos. 19231, 21520, 20119, 18074 and 15963 of 2016, decided on 4th May, 2017)
(B) Promotion—Right to—Promotion takes effect from date of being granted and not from date of occurrence of vacancy or creation of post—Unless there is specific rule entitling applicants to receive promotion from date of occurrence of vacancy—Right of promotion does not crystallize on date of occurrence of vacancy—And promotion is to be implemented on date when it is actually effected by way of appointment—In case of sealed cover procedure when recommendations are kept in sealed cover awaiting outcome of disciplinary proceedings—Promotions have to be retrospectively made with or without financial benefits subject to decision of appointing authority. [Para 127]
(C) Promotion—Procedure—Departmental Promotion Committee should be convened at regular intervals to draw panels which could be utilized on making promotions against vacancies occurring during course of a year—For this purpose it is essential for concerned appointing authorities to initiate action to fill up existing as well as anticipated vacancies well in advance of expiry of previous panel by collecting relevant documents—DPC could be convened every year if necessary on a certain fixed date—Departments should lay down a time schedule for holding DPCs under their control—After laying down such a schedule same should be monitored by making one of their officers responsible—Holding of DPC meetings need not be delayed or postponed on ground that recruitment rules for a post are being reviewed/amended—Vacancy shall be filled in accordance with recruitment rules in force on date of vacancy unless rules made subsequently have been expressly given retrospective effect—Where for reasons beyond control DPC not be held in a year even though vacancies arose during that year—First DPC that meets thereafter should follow procedure of determination of actual number of regular vacancies that arose in each of previous year immediately preceding—And actual number of regular vacancies proposed to be filled in current year separately and consider officers who would be within field of choice with reference to vacancies of each year starting with earliest year onwards—After considering eligibility list select list be prepared according to vacancy of recruitment year. [Para 127]
Result; Order Accordingly.
Hon’ble Sheo Kumar Singh-I, J.—By means of the aforesaid writ petitions filed under Article 226 of the Constitution of India, the petitioners have assailed the order dated 18.7.2016 passed by U.P. Government whereby the final seniority list for the cadre of Assistant Commissioner, Commercial Tax has been finalized and issued. Writ Petition Nos. 19231 (SB) of 2016, 21520 (SB) of 2016, 20119 (SB) of 2016 and 18074 (SB) of 2016 have been filed for quashing the same seniority list i.e. 18.7.2016 with prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to prepare fresh seniority list in accordance with rules. While filing the Writ Petition No. 15963 (SB) of 2016 (A.K. Rai and others v. State of U.P. and others), the petitioners have prayed for issue a writ, order or direction in the nature of mandamus directing the opposite parties to finalize gradation list/seniority list from serial No. 2116 and onwards and to further hold departmental promotion for remaining 42 posts of Deputy Commissioner of the recruitment year 2015-2016. The list contains the officers of two categories mentioned in Rule 5(a) (i) and (ii) of the Uttar Pradesh Sales Tax Service Rules, 1983 (for short, 1983 Rules). The recruitment on the post of Assistant Commissioner, Commercial Tax is made by direct recruitment and by promotion from amongst Commercial Tax Officers and the quota as prescribed is 50% each. The petitioners of Writ Petition No. 19231 (SB) of 2016 were recruited on the basis of combined State Subordinate Service Examination, 2007 on the basis of a competitive examination and were given appointment on the following dates :
| Sl. No. | Name | Date of appointment |
| 1 | Shanti Shekhar Singh | 9.2.2011 |
| 2 | Prabhat Kumar Pathak | 9.2.2011 |
| 3 | Rahul Kumar Dwivedi | 24.12.2010 |
| 4 | Bhawesh Singh | 9.2.2011 |
2. Respondent Nos. 4 to 8 were promoted on the post of Assistant Commissioner, Commercial Tax from the post of Commercial Tax Officers vide order dated 28.7.2010. The service conditions for the post are governed by 1983 Rules. Nomenclature of the Sales Tax Officer Grade-I was changed to Trade Tax Officer Grade-I in the year 2002 and further in 2008 the nomenclature was again changed and re-named as Assistant Commissioner, Commercial Tax. By 4th amendment made in the rules in the year 2002 the words Sales Tax Officer/Commercial Tax Officer were substituted by the words Assistant Commissioner.
3. It would be appropriate to quote certain rules and provisions relating and governing the service conditions of the officers of the Commercial Tax Department. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India the rules regulating recruitment and conditions of service of persons appointed to Uttar Pradesh Sales Tax Service were made vide Notification dated 24.12.1983, which defines as follows :
2. Status of the Service.—The Uttar Pradesh Sales Tax Service is a State Service comprising Group A and Group B posts.
3. Definitions.—In these rules, unless there is anything repugnant in the subject or context:
(a) “Appointing Authority” means the Governor of Uttar Pradesh;
(b) “Assistant Commissioner” means an officer appointed as Assistant Commissioner, Sales Tax;
(c) ...........
(d) “Commission” means the Uttar Pradesh Public Service Commission;
(e) .........
(f) .........
(g) .........
(h) .........
(i) .........
(j) “Member of the Service” means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the Service;
(k) ..........
(l) ..........
(m) “Service” means the Uttar Pradesh Sales Tax Service;
(n) “Substantive” appointment means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instr
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