# Merit List v. Date of Joining - Certiorari

- **Citation:** (2023) 11 ILRA 515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** Writ-A No. 2986 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/merit-list-v-date-of-joining-certiorari-49372
- **Pages:** 36

## Headnote

C.S.C., Aakarsh Sood, Amit Bose, Ashok Shukla,
Manjive
Shukla,
Mohd.
Shujauddin
Waris,
Niranjan Singh, Prashant Singh Gaur, Prem
Chandra, Ramesh Pandey, Surya Mani Singh,
Upendra Nath Misra

Civil Law - U.P. Government Servants
Seniority Rules, 1991 - Rule 5 - U.P.
Secretariat Accounts Service Rules, 1993
- Rule 20 - Seniority - Direct Recruitment -
Merit List vs. Date of Joining - Certiorari -
Mandamus

The
petitioners,
appointed
as
Assistant
Accountants in 2000 from the main select list of
a 1995 recruitment, challenged the seniority list
dated 23.04.2010, which placed respondents
(wait-listed candidates appointed in 2001)
above
them,
seeking
its
quashing
and
restoration of the 29.12.2005 seniority list. The
petitioners argued that seniority should be
determined by the date of joining, as they
joined earlier, and that the appointments of
wait-listed candidates were illegal, violating
G.O.s and judicial precedents. The respondents
contended that Rule 5 of the Seniority Rules,
1991, mandates seniority based on the merit list
for a single selection, and both groups were part
of the same 1995 selection process. Held: (1)
The writ petitions were dismissed, upholding the
seniority list dated 23.04.2010. (2) Rule 5 of the
Seniority Rules, 1991, governs seniority for
direct recruitment from one selection, requiring
it to be based on the merit list prepared by the
Commission, not the date of joining. (3) Both
petitioners and respondents were selectees of
the same 1995 selection, making the combined
merit list dated 05.06.2003 binding, as it was
unchallenged. (4) The seniority list dated
29.12.2005, based on joining dates and Bhey
Ram Sharma Vs Haryana St. El. Bd., was
erroneous,
as
it
involved
two
separate
selections, unlike the single selection here. (5)
The Yogendra Kumar Pal Vs St. of U.P. case was
516 INDIAN LAW REPORTS ALLAHABAD SERIES
inapplicable, as it involved wait-listed candidates
appointed to new vacancies, not unfilled ones.
(6) The St.'s preparation of the 23.04.2010
seniority list complied with Rule 5 and Rule 20
of the 1993 Service Rules. (7) Seniority is a
statutory, not fundamental, right, and no
violation of Articles 14 or 16 was established.
(8) The St. was directed to prepare a fresh
seniority list for Review Officer (Accounts) based
on the 23.04.2010 list and consider promotions
to Section Officer (Accounts), accounting for
long-standing
service
without
disturbing
established seniority.

Case Law Cited:

## Text

_Characters 0–39,855 of 125,372. This is a partial read: ask again with offset=39855 for what follows._

11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
515
immunity to gratuity from attachment.
Thus, the deduction of the amount of arrears
of 6th Pay Commission of Rs. 2,86,851/- from
gratuity money payable to him is illegal and
was rightly directed to be refunded to the
respondent-petitioner vide impugned order
dated 26.4.2023 passed by the learned Single
Judge in Writ-A No. 33297 of 2013.

24. The amount of Rs. 2,86, 851/- which
was deducted from the gratuity amount of the
respondents on 31.10.2019 has been refunded
to the respondent-petitioner in compliance of
the order dated 24.6.2023 passed by the learned
Single Judge in Writ-A No. 33297 of 2013
(Suresh Chandra Asthana, S/O, S. N. Lal
Asthana Vs. State Of U.P. And 3 Others).

25. In the facts and circumstances of the
case, the recovery of payment of arrears of 6th
Pay Commission would be iniquitous and
arbitrary and cannot be permitted.

26. It is our considered opinion that there
is no illegality or infirmity in the impugned
judgment and order dated 24.6.2023 passed by
learned Single Judge of this Court, there is no
merit in the special appeal and is liable to be
dismissed.

27. The appeal is dismissed accordingly.
----------
(2023) 11 ILRA 515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2986 of 2010
connected with

Writ A Nos. 2001249 of 2014, 10278 of 2016 &
1517 of 2014
Ali Safdar Anhsari & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
G.C. Verma, Amol Kumar, Anupam Mehrotra,
Bhoopal Singh

Counsel for the Respondent:
C.S.C., Aakarsh Sood, Amit Bose, Ashok Shukla,
Manjive
Shukla,
Mohd.
Shujauddin
Waris,
Niranjan Singh, Prashant Singh Gaur, Prem
Chandra, Ramesh Pandey, Surya Mani Singh,
Upendra Nath Misra

Civil Law - U.P. Government Servants
Seniority Rules, 1991 - Rule 5 - U.P.
Secretariat Accounts Service Rules, 1993
- Rule 20 - Seniority - Direct Recruitment -
Merit List vs. Date of Joining - Certiorari -
Mandamus

The
petitioners,
appointed
as
Assistant
Accountants in 2000 from the main select list of
a 1995 recruitment, challenged the seniority list
dated 23.04.2010, which placed respondents
(wait-listed candidates appointed in 2001)
above
them,
seeking
its
quashing
and
restoration of the 29.12.2005 seniority list. The
petitioners argued that seniority should be
determined by the date of joining, as they
joined earlier, and that the appointments of
wait-listed candidates were illegal, violating
G.O.s and judicial precedents. The respondents
contended that Rule 5 of the Seniority Rules,
1991, mandates seniority based on the merit list
for a single selection, and both groups were part
of the same 1995 selection process. Held: (1)
The writ petitions were dismissed, upholding the
seniority list dated 23.04.2010. (2) Rule 5 of the
Seniority Rules, 1991, governs seniority for
direct recruitment from one selection, requiring
it to be based on the merit list prepared by the
Commission, not the date of joining. (3) Both
petitioners and respondents were selectees of
the same 1995 selection, making the combined
merit list dated 05.06.2003 binding, as it was
unchallenged. (4) The seniority list dated
29.12.2005, based on joining dates and Bhey
Ram Sharma Vs Haryana St. El. Bd., was
erroneous,
as
it
involved
two
separate
selections, unlike the single selection here. (5)
The Yogendra Kumar Pal Vs St. of U.P. case was
516 INDIAN LAW REPORTS ALLAHABAD SERIES
inapplicable, as it involved wait-listed candidates
appointed to new vacancies, not unfilled ones.
(6) The St.'s preparation of the 23.04.2010
seniority list complied with Rule 5 and Rule 20
of the 1993 Service Rules. (7) Seniority is a
statutory, not fundamental, right, and no
violation of Articles 14 or 16 was established.
(8) The St. was directed to prepare a fresh
seniority list for Review Officer (Accounts) based
on the 23.04.2010 list and consider promotions
to Section Officer (Accounts), accounting for
long-standing
service
without
disturbing
established seniority.

Case Law Cited:

1. Sub-Inspector Rooplal Vs Lt. Governor,
(2000) 1 SCC 644

2. D.P. Sharma Vs U.O.I., 1989 (Supp) 1 SCC
244

3. Surendra Jai Narain Vs St. of U.P., C.M.W.P.
No. 34043/2001, decided on 09.12.2005

4. Girdhar Kumar Dadhich Vs St. of Raj., (2009)
2 SCC 706

5. St. of J & K Vs Sat Pal, (2013) 4 SCC 737

6. Pt. MSM Sharma Vs Sri Krishna Sinha, AIR
1959 SC 395

7. Bhey Ram Sharma Vs Har. St. El. Bd., 1994
Supp (1) SCC 276

8. R.N. Gosain Vs Yashpal Dhir, (1992) 4 SCC 683

9. St. of Karnataka Vs AIMO, (2006) 4 SCC 683

10. U.P. Power Corpn. Ltd. Vs Rajesh Kumar, (2012)
7 SCC 1

11. Kamraj Nadar Vs Kunju Thevar, AIR 1958 SC 687

12. Prafulla Kumar Das Vs St. of Orissa, (2003) 11
SCC 614

13. St. of U.P. Vs Dinkar Sinha, (2007) 10 SCC 548

14. St. of U.P. Vs U.P. Excise Subordinate O.M.
Association, (2002) 9 SCC 718

15. Pankaj Kumar Vs St. of U.P., C.M.W.P. No.
41701/2008, decided on 03.01.2011

16. Anil Kumar Sharma Vs St. of U.P., 1997 SCC
Online All LJ 2003

17. Bhoodev Singh Vs Chairman, U.P. St.
Electricity Board

(Delivered by Hon'ble Irshad Ali, J.)

1. 1. Heard Shri Anupam Mehrotra,
learned counsel for the petitioners, Shri
Upendra Nath Misra, learned Senior
Advocate assisted by Sri Neel Kamal
Mishra, learned counsel for the respondentState, Shri R.K. Upadhyaya, learned
counsel
for
respondent
no.3,
Shri
Shujauddin Waris, learned counsel for
respondent nos.4 and 10 and Shri Surya
Mani Singh, learned counsel for respondent
nos.8 and 11.

2. This bunch of writ petitions is
being decided by means of a common
judgment
and
order
treating
Writ-A
No.2986 of 2010 to be leading writ petition
and the judgment and order passed therein,
shall be equally applicable to all the
connected writ petitions.

3. By means of the present writ
petition, the petitioner has prayed for the
following reliefs:

"(i) issue a writ order or direction in
the nature of Certiorari for quashing the
impugned order dated 23.4.2010 along
with seniority list against the attached with
impugned order.

(ii) issue a writ order or direction in
the nature of Mandamus commanding the
opposite parties to restore back seniority
list dated 29.12.2005 by placing the
opposite party no.4 to 11 below from the
petitioners.
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
517

(iii) issue a writ order or direction of
mandamus commanding the opposite party
no.1 and 2 not to take any action for
promotion to the opposite parties nos.4 to
11 according to the impugned seniority list
on the next higher post.

(iv) issue a writ order or direction in
the nature and manner which deemed just
and proper in the circumstances of the
case.

(v) Allow the writ petition with costs."

4. Factual matrix of the case is that in
the year 1995, 82 posts of the Assistant
Accountants were notified by the opposite
party no.3 against which the selection was
held and finalized for appointments of the
Assistant
and
also
finalized
for
appointment of the Assistant Accountant in
Secretariat U.P., Lucknow.

The opposite party no.3 notified the
result of the 82 vacancies in which the
opposite party nos.4 to 11 were not selected
as they were in waiting list. The opposite
party no.3, in the select list of 75, selected
candidates on 6.12.1997; selected again for
4 candidates on 6.8.1998; and for 3
candidates on 28.10.1999.

The appointment letters were issued to
the petitioners for the appointment on the
posts in question between 26 February,
2000 upto March, 2000 and they have
submitted their joining as per dates
mentioned in the impugned seniority list.

After joining of the petitioners and
other persons as per selection held by the
opposite party no.3 the final seniority list
of the cadre of the Assistant Accountants
was issued on 20.9.2001 in which the
names of the opposite party nos.4 to 11
are not find place as they were in waiting
list.

One Sri Ghan Shyam Singh along with
2 others filed Writ Petition No.7775 of
2001
before
this
Hon'ble
Court
at
Allahabad by making prayers that certain
posts yet has not been filled up and some
selected candidates did not turn up or after
joining they have resigned. This Hon'ble
Court directed for sending the requisition
for calling the names for filling the unfilled
vacancy, vide judgment and order dated
17.5.2001.

In
compliance
of
the
aforesaid
judgment, the State Government asked for
the names of the persons who were in
waiting list and accordingly, the opposite
party no.3 sent the name of the 23 persons
for appointment against unfilled vacancies
through letter dated 24.7.2001.

The opposite party no.2 issued the
appointment letters to the opposite party
nos.4 to 11 on 27.9.2001 and on other dates
and they have submitted their joining in the
Department as Assistant Accountants upto
31.10.2001 as per dates mentioned in the
impugned seniority list.

Before giving the appointments to the
opposite party nos.4 to 11, Special Appeal
No.507/ 2000 was filed by the opposite
parties against the judgment and order
dated 14.5.2001, therefore, the opposite
party no.1 issued the appointment letters to
the opposite party nos.4 to 11 for
appointing to the opposite party nos.4 to 11
as mentioned and their appointments will
be subject to final decision of special
appeal.

Petitioner nos.9 and 10 along with
others 41 persons promoted from the post
of Assistant Accountant to the post of
Accountant even before joining of the
opposite party nos.4 to 11 in the cadre vide
518 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 11.9.2001 according to the
seniority prepared by the opposite party
no.1.

After joining of the opposite party
nos.4 to 11, they have moved their
applications for including their names in
the seniority list of Assistant Accountants.
The opposite party no.1 issued a letter to
the opposite party no.3 for fixing the merit
of the persons likewise the opposite party
nos.4 to 11 along with main list. The
opposite party no.3 illegally issued the
merit list by including their names of
persons who were in waiting list and on
that basis the opposite party no.1 again
issued the tentative seniority list for placing
the opposite party nos.4 to 11 above the
petitioners. Thereafter, the petitioners filed
their objections but the opposite party no.2
finalized the seniority list on 11.3.2004 in
which the opposite party nos.4 to 11 who
were not in any cadre, were placed above
the petitioners.

Feeling aggrieved by the said seniority
list, some of the petitioners filed Writ
Petition No.1517/2004 (SS) before this
Court which is pending, however, during
pendency of the writ petition, the good
sense was prevail to the opposite party
nos.1 and 2 that they themselves after
taking advise from Law Department again
issued the tentative seniority list in
view of the law laid down by the
Hon'ble Supreme Court for amending
the seniority list dated 11.3.2004. The
tentative seniority list was again
issued on 16.12.2004 in which the
opposite party nos.4 to 11 were placed
below petitioners on their right place,
as they have joined in the cadre/
service in October, 2001. The final
seniority list was issued correctly on
29.12.2005.

Against
the
seniority
list
dated
29.12.2005, the opposite parties namely
Rama Shankar Tiwari and Mohd. Tanveer
Haidar filed Writ Petition No.114 of 2006
(SS) before this Court without impleading
the affected persons, wherein some of the
petitioners put in appearance through their
counsel and the petitioners were impleaded
as opposite parties; then this Hon'ble Court
has been pleased to pass an order on
15.1.2006 by granting time for filing the
counter affidavit and the promotion, if any
on higher post, shall be subject to final
decision of the writ petition.

Even after finalization of the final
seniority list the opposite party no.1 was
not taking any action for promotion on the
next higher post then the some of the
petitioners filed the writ petition for their
promotion as per Rules, 1993. This
Hon'ble Court directed for considering the
promotion
of
Assistant
Accountant
according to the Rules, 1993 against the
vacancies which were occurred before the
amendment of the Rules, if any, on
24.8.2006
in
the
Writ
Petition
No.4531/2006.

In pursuance of the seniority list dated
29.12.2005 as well as direction issued by
this Court, the opposite party no.1
considered the case of the petitioners for
promotion on the post of Accountants vide
order dated 23.2.2007. The petitioners were
promoted on the next higher post which is
post of Accountants and since then, the
petitioner are working on the promotion
post.

Two opposite parties namely Surendra
Kumar Pandey and Amit Chaudhary filed
Writ Petition No.1179 of 2007 against the
seniority list dated 29.12.2005 in the year
2007 when the promotion of the petitioners
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
519
were under consideration. This Hon'ble
Court was pleased to pass an interim order
by directing therein that result of D.P.C.
will not be declared, however, the learned
counsel for the opposite party no.1 has
produced the judgment passed in Writ
Petition No.34043/2001 in which the
question of seniority from the appointee of
main list and appointee of the waiting list at
later stage was raised, this Hon'ble Court
finding that there is no good ground for
interference in the matter, hence the interim
order granted earlier vide order dated
22.2.2007 was kept in abeyance.

In the order dated 22.2.2007 it was
noted and observed that the seniority list
prepared by the opposite parties was
challenged in Writ Petition No.34043/2001
was finalized, the contention was that
similar case was finally decided and the
question of seniority of Panchayatee Raj
was under consideration in the judgment
and order dated 9.12.2005, however, the
question was the same, therefore correction
application was moved by the State in Writ
Petition No.1179 of 2007 against the order
dated 22.2.2007. The special appeal was
filed by the petitioner of the said writ
petition, the same was also decided by the
Division Bench by relegating the matter
before the Hon'ble Court where the writ
petition is pending.

During pendency of Writ Petition
No.1179 of 2007 as well as Writ Petition
No.114 of 2006 against the seniority list
dated 29.12.2005, the opposite party no.1
moved application before this Hon'ble
Court for granting leave for preparation of
the seniority list according to law after
canceling
the
seniority
list
dated
29.12.2005 which was allowed by this
Hon'ble Court on 6.5.2009 as mentioned in
the impugned order itself.

It appears that the opposite party nos.4
to 11 have succeeded to peruse the opposite
party no.1 to take decision in their favour
even against the final verdict of this
Hon'ble Court affirmed by the Hon'ble
Supreme Court, accordingly the Principal
Secretary Panchaytee Raj has prepared the
seniority
list
of
the
employees
in
compliance of the same by placing the
selectees of the main list over and above
the selectees of waiting list.

The opposite party no.1 again issued
tentative seniority list for restoring the
seniority list dated 11.3.2004 on 15.2.2010
by which the objections were invited from
affected persons, all the petitioners filed
their
objections
which
have
been
mentioned in the impugned order itself. In
their objections the petitioners have raised
several pleas, most important pleas were
that the selection was held in the year 1995;
the select list was prepared in the year 1997
and was issued for the appointment as per
G.O.; there is no provision for waiting list,
but appointment were given to the opposite
party nos.4 to 11 in the year 2001 on that
very ground that the special appeal is
pending filed by the opposite party no.1
itself, therefore they cannot be included in
seniority list.

IInd most important plea was that the
Division Bench of this Hon'ble Court has
been pleased to decide the matter finally in
Writ Petition No.34043/2001 which was
affirmed by the Hon'ble Supreme Court,
wherein this Hon'ble Court has decided the
selectees of the main list will be placed
over
and
above
the
selectees
and
appointees from the waiting list.

The opposite party no.1 decided all the
objections by stating that the judgment
passed in Writ Petition No.34043/2001 is
520 INDIAN LAW REPORTS ALLAHABAD SERIES
not related from the post in question,
therefore the same will not be applicable in
the matter. The opposite parties while
deciding the objections have committed
gross illegality by raising factum while law
laid down by this Hon'ble Court and
affirmed by the Hon'ble Supreme Court
has already been complied with by the
State Government in which it has been held
that selectees of the waiting list even of
general category having more marks than
the petitioners reserve category likewise the
O.B.C. cannot be placed above from the
O.B.C. category as they are not the
selectees in the main list. But the opposite
party by overlooking the judgment and on
his own way issued the impugned order by
committing the gross illegality.

Undisputedly the opposite party nos.4
to 11 are not finding place in the merit list
of main list of 82 persons, therefore they
cannot be said as selectees of one selection.

In compliance of the judgment the
opposite party nos.4 to 11 have given the
appointment in 2001 while the petitioners
were already appointed in March, 2000
upto preparation of the seniority list dated
20.9.2001 the opposite party nos.4 to 11
were not in cadre, therefore, in evident they
cannot be placed over and above the
petitioners.

It has been settled by this Hon'ble
Court as well as Hon'ble Supreme Court
that the persons will gain seniority from the
date of their joining and not before that.
The provisions of Rule 5 clearly indicates
that if the persons even fail to join being
selectee of the same one selection then he
will loose his seniority, in the case in hand
the opposite party nos.4 to 11 cannot be
given any reason for their joining as they
are not selectee of the main list. In these
circumstances they cannot be placed above
the petitioners.

Recently, this Hon'ble Supreme Court
has been pleased to hold that no one can
claim the seniority before taking birth in
the cadre, in case in hand the opposite party
nos.4 to 11 have been appointed in
October, 2001 and they are claiming their
seniority above the petitioners who have
been appointed from main list in February
and March, 2000 as per dates mentioned in
the impugned seniority list but the opposite
party nos.1 and 2 have placed arbitrarily
the opposite party nos.4 to 11 above the
petitioners in very illegal and arbitrary
manner while they are liable to be placed at
bottom as they have been placed in the
seniority list dated 29.12.2005.

Opposite parties are taking recourse of
merit list which was prepared by the
opposite party no.3 in 2003 after request
made by the opposite party no.1 after
including the opposite party nos.4 to 11
who were not find place in the main list,
therefore it cannot be said in any manner
they are senior.

Opposite party nos.4 to 11 are not the
selectees of same selection in fact they
were in waiting list and not in select list
and as per decision of State Government
itself
as
were
taken
by
the
State
Government not once but in the year 1992
and later in the years 1994 and 1999, earlier
the provision was that wailing list will
remain valid only for one year as per G.O.
dated 29.8.1992 and same was reiterated on
31.1.1994 but in case in hand elect list was
prepared along with waiting list for the year
1997 which was valid only up to the year
1998 but the appointments have been given
to the opposite party nos.4 to 11 from the
waiting list which was even not in
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
521
existence after expiry of one year. The
State
Government
vide
G.O.
dated
15.11.1999 has taken decision that no
waiting list will be prepared along with
main list.

The appointment of the opposite party
nos.4 to 11 are itself illegal and not in
accordance with provision of the G.O.
issued by the State Government but the
opposite parties against their own decision
for providing favouritism to the opposite
party nos.4 to 11 have placed them over
and above the petitioners was impugned
seniority.

Undisputedly all the petitioners have
been promoted to the next higher post in
the year 2001 and 2007 as per details given
in preceding paragraphs but the opposite
parties have placed the petitioner below
from the opposite party nos.4 to 11 but yet
have not been promoted.

The opposite party nos.1 and 2 are
going to promote to the opposite parties
nos.4 to 11 from the different date to the
next higher post even from the date when
they were not in service while as per the
Rules 1993 at least the 5 years continuous
service is required on the post of Assistant
Accountant. Having no other alternative
and
effcacious
remdy
open
to
the
petitioners expect to approach to this
Hon'ble court by filing the writ petition
under Article 226 of the Constitution of
India.

5. Learned counsel for the petitioners
submitted that the opposite party no.1 again
issued tentative seniority list for restoring
the seniority list dated 11.3.2004 on
15.2.2010 by which the objections were
invited from affected persons; all the
petitioners filed their objections which have
been mentioned in the impugned order
itself. In their objection the petitioners have
raised several pleas most important pleas
were that the selection was held in the year
1995 and select list was prepared in the
year 1997 and was issued for appointment
as per G.O. there is no provision for
waiting list, but appointments were given to
the opposite party nos.4 to 11 in the year
2001 on that very ground that the special
appeal is pending filed by the opposite
party no.1 itself, therefore they cannot be
included in the seniority list. IInd most
important plea was that the Division Bench
of this Hon'ble Court has been pleased to
decide the matter finally in Writ Petition
No.34043/2001 which was affirmed by the
Hon'ble Supreme Court, this Court has
decided that the selectees of the the main
list will be placed over and above the
selectees and appointees from the waiting
list.

6. Learned counsel for the petitioner
next submitted that the opposite party no.1
decided all the objections by stating that the
judgment
passed
in
Writ
Petition
No.34043/2001 is not related from the post
in question, therefore the same will not be
applicable in the matter. The opposite
parties while deciding the objections have
committed gross illegality by raising
factum while law laid down by the
Hoon'ble Court and affirmed by the
Hon'ble Supreme Court has already been
complied by the State Government in
which it has been held that selectees of the
wailing list even of general category
likewise the O.B.C. cannot be placed above
from the O.B.C. category as they are not
the selectee in the main list. But the
opposite party by over looking the
judgment on his own way issued the
impugned order by committing the gross
illegality.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned counsel for the petitioner
next submitted that in compliance of the
judgment the opposite party no.4 to 11
have given the appointment in 2001 while
the petitioners were already appointed in
March, 2000 upto preparation of the
seniority list dated 20.9.2001 and the
opposite party nos.4 to 11 were not in the
cadre, therefore, in evident they cannot be
placed over and above the petitioners.

8. Learned counsel for the next
submitted that it has been settled by this
Hon'ble Court as well as Hon'ble Supreme
Court that the persons will gain seniority
from the date of their joining and not
before that. The provisions of Rules 5
clearly indicates that if the persons even
fail to join being selectee of the same one
selection then he will loss his seniority, in
the case in hand the opposite party nos.4 to
11 cannot be given any reason for their
joining as they are not selectee of the main
list. In these circumstances they cannot be
placed above the petitioners.

9. Learned counsel for the petitioner
next submitted that recently, this Hon'ble
Supreme Court has been pleased to hold
that no one can claim the seniority before
taking birth in the cadre, in case in hand
the opposite party nos.4 to 11 have been
appointed in October, 2001 and they are
claiming their seniority above the
petitioners who have been appointed
from main list in February and March,
2000 as per dates mentioned in the
impugned seniority list but the opposite
party
nos.1
and
2
have
placed
arbitrarily the opposite party nos.4 to
11 above the petitioners in very illegal
and arbitrary manner while they are
liable to be placed at bottom as they
have been placed in the seniority list
dated 29.12.2005.

10. Learned counsel for the petitioner
next submitted that the impugned order as
well as impugned seniority list is wholly
illegal, arbitrary and against the settled
principle of law.

11. Learned counsel for the petitioner
next submitted that it is very well evident
from the facts and circumstances of the
case that favoritism has been given to the
opposite party nos.4 to 11 in fixing the
impugned seniority list by ignoring the
final verdict by this Hon'ble Court for
reason best known to the opposite party
nos.1 and 2 themselves.

12. Learned counsel for the petitioner
next submitted that the impugned order has
been passed in malice of law and against
the provision of Articles 14 and 16 of the
Constitution of India, therefore the same
cannot be sustained.

13. Learned counsel for the petitioner
next submitted that permission was granted
by this Hon'ble Court for fixing the
seniority list according to law by looking
application, that it is not means in any
manner that license was granted to the
opposite party no.1 to ignore the provisions
of law and final verdict of this Hon'ble
court while fixing the impugned seniority
list.

14. Learned counsel for the petitioner
next submitted that the decision rendered
by this court as well as Hon'ble Supreme
Court are binding upon the opposite parties
and they are under legal obligation to act as
per directions issued by this Hon'ble Court.

15. Learned counsel for the petitioner
next submitted that the opposite parties are
taking recourse of merit list which was
prepared by the opposite party no.3 in 2003
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
523
after request made by the opposite party
no.1 after including the opposite party
nos.4 to 11 who were not find place in the
main list, therefore, it cannot be said in any
manner they are senior.

16. Learned counsel for the petitioner
next submitted that the appointment of the
opposite party nos.4 to 11 are itself illegal
and not accordance with provisions of the
G.O. issued by the State Government but
the opposite parties against their own
decision for providing favoritism to the
opposite party nos.4 to 11 have placed
them over and above the petitioners was
impugned seniority list.

17.

Learned
counsel
for
the
petitioners next submitted that undisputedly
all the petitioners have been promoted to
the next higher post in the year 2001 and
2007 as per details given in preceding
paragraphs but the opposite parties have
placed the petitioners below from the
opposite parties have placed the petitioners
below from the opposite party nos.4 to 11
but yet have not been promoted.

18.

Learned
counsel
for
the
petitioners next submitted that the opposite
party nos.1 and 2 are going to promote to
the opposite party nos.4 to 11 from the
different date to the next higher post even
from the date when they were not in the
service while as per the Rules,1993 at least
the 5 years continuous service is required
on the post of Assistant Accountants.

19.

Learned
counsel
for
the
petitioners
next
submitted
that
the
impugned
order
including
the
main
seniority list is wholly illegal and arbitrary
and is again the provisions of Rules as well
as law laid down by this Hon'ble Court.

20. In support of his submissions,
learned counsel for the petitioners placed
reliance upon the following judgments:

(i) Sub-Inspector Rooplal v. Lt.
Governor reported in (2000)1 SCC 644

(ii) D.P. Sharma v. Union of India
reported in 1989 (Supp) 1 SCC 244

(iii)
C.M.W.P.
No.34043/2001
(Suprendra Jai Narain v. State of U.P.)
decided on 9.12.2005.

(iv) Girdhar Kumar Dadhich v.
State of Rajasthan reported in (2009)2
SCC 706

(vi) State of J & K v. Sat Pal
reported in (2013) AA SCC 737

(vii) Pt. MSM Sharma v. Sri
Krishna Sinha reported in AIR 1959 SC
395

(viii) Bhey Ram Sharma v. Haryana
State El. Bd. Reported in 1994 Supp (1)
SCC 276

(ix) R.N. Gosain v. Yashpal Dhir
reported in (1992) 4 SCC 683

(x) State of Karnataka v. AIMO
reported in (2006)4 SCC 683

(xi) U.P. Power Corpn. Ltd. v.
Rajesh Kumar reported in (2012)7 SCC
1

(xii)Kamraj Nadar v. Kunju Thevar
reported in AIR 1958 SC 687

21. Per contra, Shri U.N. Mishra,
learned Senior Advocate appearing for
the respondents-State submitted that in
service jurisprudence, it is settled
position of law that seniority is only a
statutory right, which is conferred to an
employee either by way of specific
provisions contained in Service Rules,
especially
prepared
for
respective
services or by way of General Rules
prepared under Article 309 of the
Constitution of India.
524 INDIAN LAW REPORTS ALLAHABAD SERIES

22.

Learned
counsel
for
the
respondents next submitted that though the
petitioners have challenged the seniority
list dated 23.4.2010 on the ground that they
should have been placed in the said
seniority list, according to their date of
appointment/ joining in the department and
not according to the combined merit list
dated 5.6.2003 prepared by the U.P.P.S.C.
but they have utterly failed to indicate as to
under what statutory legal provision, they
can sustain such a claim of seniority from
the date of substantive appointment, which
is applicable only in the cases covered by
provision-2 of Rule-5 and also of the cases
covered under Rule-8 of the Seniority
Rules, 1991. However, none of these two
Ruls are applicable in the instant case.

23.

Learned
counsel
for
the
respondent
next
submitted
that
the
judgment of Bhey Ram Shar (supra) has
no application in the instant case in hand
because the said judgment about seniority
was passed where selectees of two separate
selections were concerned and therefore,
provisions of the second proviso to Rule-5
of Seniority Rules, 1991 was applicable,
whereas in the instant case, both the
petitioners and respondents are selectees of
the same selection, therefore hey are
covered by the main provisions of Rule-5
of the Seniority Rules, 1991.

24.

Learned
counsel
for
the
respondents
next
submitted
that
the
seniority
of
candidates,
where
appointments are made only by direct
recruitment from the result of "only one
selection" is determined in accordance with
the Rule-5 of the Seniority Rules, 1991,
which mandates preparation seniority list
only according to the merit list prepared by
the Commission or the committee, as the
case may be.

25.

Learned
counsel
for
the
respondents next submitted that the last and
final seniority list dated 23.4.2010 of ARO
Accounts
prepared
by
the
State
Government strictly according to the Rule
5 of the U.P. Government Seniority Rules,
1991 read with rule 20 of the Service Rules
of 1993 deserves to be upheld, so that the
State Government may prepare the fresh
final seniority list of the next higher post of
Review Officer Accounts on the basis of
the same and thereafter, promotions on the
vacant post of Section Officer Accounts
may
be
made
in
the
Secretariat
Administration Department of U.P. Civil
Secretariat.

26.

Learned
counsel
for
the
respondents next submitted that it is a
settled position of law that seniority is only
a statutory right, which is conferred to an
employee either by way of specific
provisions contained in Service Rules,
especially prepared for respective services
or by way of General Rules prepared under
Article 309 of the Constitution of India.

27.

Learned
counsel
for
the
respondent in support of his submissions,
relied upon the following judgments:

(i) Prafulla Kumar Das v. State of
Orissa reported in (2003)11 SCC 614

(ii) State of U.P. v. Dinka Sinha
reported in (2007) 10 SCC 548

(iii) State of U.P. and others v. U.P.
Exercise Subordinate O.M. Association
and others reported in (2002) 9 SCC 718

(iv) Pankaj Kumar v. State of U.P.
and others passed by this Hon'ble Court
in Civil Misc. W.P. No.41701 of 2008
decided on 3.1.2011.

(v) Anil Kumar Sharma v. State of
U.P. and others reported in 1997 SCC
Online All LJ 2003
11 All. Ali Safdar Anhsari & Ors. Vs. State of U.P.
525

(vi) Bhoodev Singh v. Chairman,
U.P. State Electricity Board and others.

28.

Learned
counsel
for
the
respondent nos.4 and 10 and respondent
nos.8 and 11 adopted the submissions
advanced by Shri Upendra Nath Misra,
learned Senior Advocate.

29. I have considered the submissions
advanced by learned counsel for the parties
and perused the material available on
record.

30. Perusal of the material indicates
as under:

(i) On 16.04.1996, advertisement for
UDA/LDA/ Assistant Accountant Exam1995 was issued for 423 posts, out of which
271 posts of UDA, 71 posts of LDA and 82
posts of Assistant Accountant in U.P. Civil
Secretariat were adversied. In January,
1997, combined written examination was
conducted by UPPSC. On 20.9.1997, result
was declared by UPPSC for 82 posts of
Assistant Accountant.

(ii) On 6.12.1997, Commission gave
its first recommendation of 75 candidates
against
81
posts.
On
23.4.1998,
Commission
gave
its
second
recommendation
of
1
candidate.
On
6.8.1998, Commission gave its third
recommendation of 4 candidates. On
28.01.1999, Commission gave its fourth
recommendation of 3 candidates.

(iii) Despite first recommendation of
75 candidates received from UPPSC in
December, 1997, when no appointments
were made on the post of Assistant
Accountant/
ARO
Accounts,
selected
candidates filed W.P. No.42184/1998 at
Allahabad i.e. Ramesh Chandra Deubey v.
State. Vide order dated 15.01.1999, the
Court directed the respondents to make
appointment on the basis of ARO Accounts
on the basis of recommendations of the
UPPSC.

(iv)
On
26.2.2000,
appointments
orders
were
issued
to
the
selected
candidates. Against the 81 posts, only 55
persons had joined. Thus, 26 posts were left
vacant. Out of this bunch of 55 candidates
the group of contesting parties i.e. the
petitioners of Ali Safdar v. State.

(v) In the year 2001, when no further
action was taken by the State for filling up
the vacant 26 posts, W.P. No.7775 of 2001
i.e. Ghanshyam Singh v. State was
filed for seeking a direction for filling
up of the 26 vacant posts. Vide
judgment and order dated 14.5.2001,
while referring to the judgment of
Yogendra Kumar Pal v. State of U.P.
dated 9.4.1998, this Court directed the
State
Government
to
send
the
requisition to the UPPSC for seeking
names of wait listed candidates in
order of merit and then to fill up the
unfilled vacancies within one month.

(vi)
On
14.6.2001,
the
State
Government reqeusted the UPPSC to send
the names of the wait listed candidates for
filling up the unfilled vacancies. On
17.9.2001,
UPPSC
recommended
15
candidates after verification of records. In
the year 2001, State filed Special Appeal
No.1060 of 2009 against the judgment and
order dated 14.5.2001.

(vii) On 10.08.2001, tentative seniority
list of ARO Accounts was issued which
included 55 candidates. This was done even
while stopping the ongoing procedure of
appointment of wait-listed candidates. On
11.09.2001, even without finalizing the
tentative seniority list, promotions of 47
ARO Accounts were made on the post of
RO Account, only on the basis of tentative
seniority
list.
Pre-requisite
for
these
promotions under the service ruls was
526 INDIAN LAW REPORTS ALLAHABAD SERIES
minimum 5 years of service as ARO
Accounts.

(viii) On 20.09.2001, seniority list of
ARO Accounts was issued in which only
55 ARO Accounts (then working) were
included.
On
27.09.2001,
thereafter,
appointment orders were issued to 15
candidates from the waiting list. In
October, 2001, out of 15 appointments
from waiting list, only 10 persons had
joined (7 General, 2 OBC, 1 SC). In the
year October, 2002, all the ARO Accounts
were confirmed.

(ix) In the year 2002, a representation
was given by 10 remaining persons for
preparation of a combined seniority list. On
17.05.2003, State requested the UPPSC to
send the combined merit-list of all 65
AROs appointed in the secretariat.

(x) On 5.6.2003, on a request of the
State Government, a combined merit-list
was sent by the UPPSC of all 65 AROs,
who were appointed by the State on the
recommendation of UPPSC and this meritlist was prepared strictly according to the
marks obtained by the general category and
reserved category candidates and they were
placed below the cut off mark of the
respective categories.

(xi) On 11.3.2004, first combined
seniority list was prepared by the State
Government strictly in accordance with 5
of the Seniority Rules, 1991 read with Rule
15(3) and 20 of the Service Rules, 1993 i.e.
in accordance with the combined merit list
uf UPPSC.

(xii) In the year 2004, seniority list
dated 11.3.2004 was challenged in Writ
Petition No.1517/2014 (Habib Ahmad v.
State of U.P.) by the candidates who had
joined the services during February to
August, 2000. However, the combined
merit list dated 5.6.2003 was initially not
challenged by the writ petitioners. In
Rejoinder affidavit, petitioners claimed the
combined merit list dated 5.6.2003 to be
irrelevant for determining seniority. Thus,
they refused to challenge it.

(xiii) In the year 2004 also, a writ
petition praying for promotion in terms of
seniority list dated 11.3.2004 was filed by
wait listed candidates i.e. Writ Petition
No.7204/ 2004 ( Ramashankar Tiwari v.
State of U.P.) and 44 promotions earlier
made on 11.9.20012 were also challenged.

(ix) On 16.12.2004, meanwhile, a
fresh tentative seniority list was issued for
ARO
Accounts
without
having
any
consultation with the Karmic Department.
On 29.12.2005, second final seniority list
dated 29.12.2005 was directly issued, on
the principle of the date of substantive
appointment while following the ratio of
judgment of Bhey Ram Sharma's case,
and not in accordance with Rule 5 of the
1991 Seniority Rules. Bhey Ram Sharma's
case is inapplicable in these cases because
in that case, there were no service rules
applicable and then were 2 selections. So it
was was held that seniority shall be given
w.e.f. date of joining, but it had no
application in this case.

(x) In the year 2006-07, since the first
seniority list dated 11.3.2004 was annulled
and then superseded by the second
seniority list dated 29.12.2005, therefore 3
writ petitions were filed against 3rd
seniority list dated 29.12.2005 i.e. (Writ
Petition
No.114/2006-
Rama
Shankar
Tiwari v. State; Writ Petition No.8418 of
2006 i.e. Nand Kishore v. State and Writ
Petition No.1179/ 2007 (Surendra Kumar
Pandey v. State).

(xi) Vide order dated 24.8.2006 passed
in Writ Petition No.4531 (SS) of 2006,
interim order was passed for consideration
of
petitioners
for
promotion.
On
27.12.2006, order of Chief Secretary was
passed to the effect that seniority list dated
29.12.2005 was erroneously prepared in
11 All. Ali Safdar Anhsari & Ors. Vs.