# Rajesh Kumar Tandon & Ors v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-20
- **Case number:** Service Single No. 12020 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-tandon-ors-v-state-of-u-p-ors-46239
- **Pages:** 18

## Headnote

Law
-
U.P.
Government
Servants Seniority Rules, 1991 - Rules
8(1) & 8(2) - Seniority - Post of Assistant
Commissioner - Promotion and direct
appointment made in the same year -
Inter se Seniority amongst direct recruits
and promotees - Determination - Rules
8(1) or Rule 8(3) - Applicability - Held, if
the appointment to the post of Assistant
Commissioner Commercial Tax is made
through direct recruitment and promotion
in the same year of recruitment, their
seniority must be determined applying the
provisions of Rule 8(3) of the Rules, 1991
-
Rule
8(1)
cannot
be
applied
for
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
185
determining inter se seniority of direct
recruits and promotees, if the selection
and appointments are made in the same
recruitment
year
through
direct
recruitment and promotion. (Para 6)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,491 of 61,973. This is a partial read: ask again with offset=39491 for what follows._

184 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof has not been given vide para-22 of
the counter affidavit.

35. Besides, the factum of hostile
discrimination with identically placed
person, namely, Sri Vijay Singh Yadav
has not been explained by the opposite
parties properly and the law is trite to the
effect that if the hostile discrimination of
a person is not explained by the authority,
who has done such discrimination, then
the said action would be treated as
violative of Articles 14, 16 & 21 of the
Constitution of India.

36. In view of what has been
considered above and also in view of the
dictums of the Apex Court so cited by the
learned counsel for the parties, I hereby
allow the present writ petition.

37. A writ of certiorari is issued
quashing the orders dated 6.7.2018 and
21.7.2018,
which
are
contained
as
Annexure Nos.1 & 2 to the writ petition.

38. A writ of mandamus is issued
commanding the opposite parties to
revise the salary of the petitioner by
providing the annual increments to the
petitioner
from
01.02.1999
till
31.07.2017
and
to
grant
the
first
promotional pay scale to the petitioner
w.e.f. the year 2004 and further grant the
benefits of the Sixth Pay Commission on
the basis of the revised salary.

39. A writ in the nature of
mandamus is issued commanding the
opposite parties to revise the retiral
benefits on the basis of last pay drawn
calculating the same in terms of judgment
of this Court thereby making payment of
arrears of salary and arrears of retiral
dues.

40. This order shall be complied with
expeditiously, preferably within a period of
eight weeks, failing which the petitioner
shall be entitled for interest on aforesaid
dues at the current market rate.

41. No order as to costs.
----------
(2021)10ILR A184
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.10.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J

Service Single No. 12020 of 2020
alongwith
Service Single No. 12834 of 2020
alongwith
Service Single No. 17765 of 2020

Rajesh Kumar Tandon & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vijay Kumar Srivastava, Shailendra Kumar
Dubey

Counsel for the Respondents:
C.S.C., Alok Saxena, Dilip Mani, Girdhari Lal
Shukla, Shobhit Mohan Shukla, Vijay Dixit

A.
Service
Law
-
U.P.
Government
Servants Seniority Rules, 1991 - Rules
8(1) & 8(2) - Seniority - Post of Assistant
Commissioner - Promotion and direct
appointment made in the same year -
Inter se Seniority amongst direct recruits
and promotees - Determination - Rules
8(1) or Rule 8(3) - Applicability - Held, if
the appointment to the post of Assistant
Commissioner Commercial Tax is made
through direct recruitment and promotion
in the same year of recruitment, their
seniority must be determined applying the
provisions of Rule 8(3) of the Rules, 1991
-
Rule
8(1)
cannot
be
applied
for
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
185
determining inter se seniority of direct
recruits and promotees, if the selection
and appointments are made in the same
recruitment
year
through
direct
recruitment and promotion. (Para 6)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Writ Petition No. 19231(SB) of 2016; Shanti
Shekhar Singh Vs St. of U.P. & ors.
2. St. of Bihar Vs Arbind Jee; 2021 SCC OnLine
SC 821
3. Ravindra Nath Pandey Vs St. of U.P.; 2014
(6) AWC 6389
4. Anil Kumar Vs St.of U.P. & ors.; 2015 (33)
LCD 1609
5. Arun Kumar Saxena Vs St. of U.P. & ors.;
2008 (6) AWC 6474
6. U.O.I. Vs N.R. Parmar; (2012) 13 SCC 340
7. Harish Chandra Ram Vs Mukh Ram Dubey;
1994 Supp (2) SCC 490
8. Jagdish Ch. Patnaik Vs St.of Orissa; (1998) 4
SCC 456
9. K.Meghachandra Singh & ors .Vs Nigam Siro
& ors.; (2020) 5 SCC 689
10. National Insurance Co. Ltd. Vs Pranay Sethi;
(2017) 16 SCC 680
11. U.O.I. & ors. Vs M.K. Sarkar; (2010) 2 SCC
59
12.U.O.I. & ors. Vs C.Girija &orrs; (2019) 15
SCC 633
13. St. of Orissa Vs Pyarimohan Samantaray &
ors.; (1977) 3 SCC
14. K.R.Mudgal & ors. Vs R. P. Singh & ors. ;
(1986) 4 SCC 531
15. Malcom Lawrence Cecil D'souza Vs U.O.I. &
ors.; (1976) 1 SCC 599
16. K.A. Abdul Majeed Vs St.of Kerala & ors.;
(2001) 6 SCC 294
17. Aflatoon & ors. Vs Lt. Governor, Delhi &
ors.; AIR 1974 SC 2077
18. St. of Mysore Vs V.K. Kangan & ors.; AIR
1975 SC 2190
19. Pt. Gidharan Prasad Missir Vs St. of Bihar &
or.s; (1980) 2 SCC 83
20. H.D. Vora Vs St. of Mah.; AIR 1984 SC 866
21. Bhoop Singh Vs U.O.I. ; AIR 1992 SC 1414
22. The Ramjas Foundation & ors. Vs U.O.I. &
ors.; AIR 1993 SC 852
23. Ram Chand Vs U.O.I. ; (1994) 1 SCC 852
24. St. of Mah. Vs Digambar; AIR 1995 SC 1991
25. Municipal Corporation of Greater Bombay Vs
Industrial Development Investment Co. (P) Ltd.
& ors..; (1996) 11 SCC 501
26. Padma vs Dy Secy. to the Govt. of Tamil
Nadu (1997) 2 SCC 627
27. Hindustan Petrolium Corp. Ltd., Vs Dolly
Das; (1999) 4 SCC 450
28. L.I.C. of India Vs Jyotish Chandra Biswas;
(2000) 6 SCC 562
29. L. Muthu Kumar & anr. Vs St. of T.N. &
ors.; (2000) 7 SCC 618
30. Municipal Council, Ahmadnagar & anr. Vs
Shah Hyder Beig & ors.; AIR 2000 24 SC 671
31. Inder Jit Gupta Vs U.O.I. & ors.; (2001) 6
SCC 637

(Delivered by Hon'ble Dinesh
Kumar Singh, J.)

1. WRIT PETITIONS:

These petitions have been filed
for quashing the seniority list dated
09.08.2012 issued by the State Government
for the cadre of Assistant Commissioner,
Commercial Tax as well as order dated
20.03.2020 passed by the Government
whereby representation dated 3.08.2019
given by one of the petitioners for refixing/revisiting the seniority list dated
09.08.2012 by placing Direct recruit
Assistant Commissioners en-block over
186 INDIAN LAW REPORTS ALLAHABAD SERIES
and
above
the
promotees
Assistant
Commissioners has been rejected.

2. FACTS:

Since common questions of fact
and law are involved, the facts of the lead
petition are mentioned hereinbelow for
deciding the controversy involved in
these petitions.

(i) The petitioners and private
respondents
are
posted
as
Deputy
Commissioner in different districts of
Uttar
Pradesh
in
Commercial
Tax
Department,
U.P.
after
they
were
promoted in the year 2014 based on
seniority list dated 09.08.2012. Services
of the petitioners as well as private
respondents are governed under U.P.
Sales
Tax
Service
Rules,
1983
(hereinafter referred to as 'Rules, 1983')
as amended from time to time.

(ii) The petitioners are direct
recruits
to
the
post
of
Assistant
Commissioner, Commercial Tax whereas
private
respondents
are
promotee
officers, who were promoted from the
post of Sales Tax Officer Grade-II. Post
of Deputy Commissioner and above are
to be filled up only by promotion.
Nomenclature
of
the
Sales
Tax
Department was changed as Trade Tax
Department and, thereafter name was
again
changed
as
Commercial
Tax
Department.
(iii) In pursuance to the advertisement
issued for holding selection for the
Combined
State
Public
Service
Examination, 2005 by the Uttar Pradesh
Public
Service
Commission,
the
petitioners were selected as per merit list
prepared by the Commission. They joined
the service on different dates in the year
2008-09. Private respondents who were
holding post of Commercial Tax Officer
were promoted under 50% quota to the
post of Assistant Commissioner vide
order dated 27.02.2009 and they joined
the said post on the same day.

(iv) Final seniority list for the
cadre
of
Assistant
Commissioner
Commercial Tax from Serial No.173 to
2115 was issued on 09.08.2012, wherein
the
officers
appointed
directly
and
through promotion on the post of
Assistant
Commissioner
in
the
recruitment year 2008-09 were placed in
order of seniority as per the relevant
Rules in the ratio of 1:1.

(v) The petitioners as well as
respondent Nos.3 to 11 were promoted on
the
post
of
Deputy
Commissioner,
Commercial Tax by means of a common
order in the year 2014 based on seniority
list dated 09.08.2012.

(vi) Petitioner No.8 submitted
representation dated 03.08.2019 against the
seniority list dated 09.08.2012. Respondent
No.1 considered the representation and
rejected the same vide impugned order
dated 20.03.2020 stating that the seniority
list dated 09.08.2012 was prepared in
accordance with law.

3.
RELEVANT
STATUTORY
PROVISIONS: -

In order to regulate the services
of officers of Sales Tax Department,
service rules named as U.P. Sales Tax
Service Rules, 1983 were promulgated
which consisted of three posts
 namely, Sales Tax Officer, Assistant
Commissioner and Deputy Commissioner.

(i) Rule 5 of Rules, 1983 provides
for source of recruitment to the various
categories of post in the services.

For
convenience
Rule
5
is
extracted hereunder: -

"5. Source of Recruitment: -
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
187

(1) Recruitment to the various
categories of posts in the Service shall be
made from the sources indicated against
each:

(a) Sales Tax Officer. - (i) By
direct
recruitment
on
the
result
of
competitive examination conducted by the
Commission, and

(ii) By promotion, through the
Commission, from amongst permanent
Sales Tax Officers, Grade-II who have put
in not less than seven years' service as such.

Note. - A combined competitive
examination
may
be
held
by
the
Commission for recruitment to the U.P.
Civil (Executive) Service and any other
State Services including this Service.

(b) Assistant Commissioner. - By
promotion from amongst permanent Sales
Tax Officers who have put in not less than
seven years' service as such.

(c) Deputy Commissioner. - By
promotion
from
amongst
permanent
Assistant Commissioners who have put in
not less than seven years' service as such.

(2) If suitable candidates are not
available for promotion on the posts of
Sales Tax Officer from the prescribed field
of eligibility, the Governor may, in
consultation with the Commission, extend
the field of eligibility to the extent
considered necessary."

(ii) Rule 18 of the Rules, 1983
provides for preparation of combined select
list if any year of recruitment appointments
are made both by direct recruitment and by
promotion. The aforesaid rule provides that
select list shall be prepared in such a
manner that the prescribed percentage is
maintained and first name in the list being
of the person appointed by promotion.

For ready reference, Rule 18 of
Rules, 1983 is extracted hereinbelow: -

"18. Combined Select List. - If
in any year of recruitment appointments are
made both by direct recruitment and by
promotion, a combined select list shall be
prepared by taking the names of candidates
from the relevant lists, in such manner that
the prescribed percentage is maintained, the
first name in the list being of the person
appointed by promotion."

(iii) Sub-Rule 2 of Rule 19
provides that where, in any year of
recruitment, appointments are to be made
both by direct recruitment and by promotion,
regular appointments shall not be made
unless selections are made from both the
sources and a combined list is prepared in
accordance with Rule 18. Sub-Rule 3
however, provides that if more than one
orders of appointment are issued in respect of
any one selection, a combined order shall
also be issued mentioning the names of the
persons in order of seniority as determined in
the selection, or, as it stood in the cadre from
which they are promoted. It is further
provided that if the appointments are made
both by direct recruitment and by promotion,
names shall be arranged in accordance with
the list prepared under Rule 18.

(iv) Rule 22 of the Rules, 1983
relates to general rule of seniority which
provides that the seniority of persons in any
category of post shall be determined from the
date of order of substantive appointment.

Rule 22 of the Rules, 1983 is
reproduced hereunder: -

"22. Seniority. -

(1) Except as hereinafter provided,
the seniority of persons in any category of
posts shall be determined from the date of the
order of substantive appointment and if two
or more persons are appointed together, by
the order in which their names are arranged
in the appointment order:

Provided that if the appointment
order specifies a particular back date with
effect from which a person is substantively
appointed, that date will be deemed to be
188 INDIAN LAW REPORTS ALLAHABAD SERIES
the
date
of
order
of
substantive
appointment and, in other cases, it will
mean the date of issue of the order:

Provided further that, if more
than one orders of appointment are issued
in respect of any one selection, the
seniority shall be as mentioned in the
combined order of appointment issued
under sub-rule (3) of Rule 19.

(2) The seniority inter -se of
persons appointed directly on the result of
any one selection shall be the same as
determined by the Commission:

Provided
that
a
candidate
recruited directly may lose his seniority if
he fails to join without valid reasons when
vacancy is offered to him. The decision of
the appointing authority as to the validity of
reason shall be final.

(3) The seniority inter se of
persons appointed by promotion shall be
the same as it was in the cadre from which
they were promoted.

(v) The State Government framed
U.P. Government Servants Seniority Rules,
1991 (hereinafter referred to as 'Rules,
1991') under Article 309 of the Constitution
of India for determination of the seniority
of persons appointed to the service under
the State Government. It is provided that
the Rules would be applicable to all
government servants in respect of whose
recruitment and conditions of service, rules
may be or have been framed separately.

(vi) Seniority Rules, 1991 have
overriding effect so far as determination of
seniority
of
government
servants
is
concerned. Under Rule 4, substantive
appointment
has
been
defined
as
appointment,
not
being
an
ad-hoc
appointment, on a post in the cadre of
Service, made after selection in accordance
with the service rules of the respective
services.

(vii)
Rule
5
deals
with
determination of the seniority where
appointments
are
made
by
direct
recruitment only. Rule 6 deals with the
determination of the seniority where
appointments
are
made
only
from
promotion from a single feeding cadre.
Rule 7 deals with a situation where
appointments are made by promotion from
more than one feeding cadre.

(viii) Rule 8 is in respect of
determination
of
seniority
where
appointments are made by promotion and
direct recruitment. Rule 8 would be
relevant for the purpose of determination of
the controversy involved in the writ
petitions.

For convenience, Rule 8 is
reproduced hereunder: -

"8. Seniority where appointments
by promotion and direct recruitment. -

(1) Where according to the service
rules appointments are made both by
promotion and by direct recruitment, the
seniority of persons appointed shall, subject
to the provisions of the following sub-rules,
be determined from the date of the order of
their substantive appointments, and if two
or more persons are appointed together, in
the order in which their names are arranged
in the appointment order:

Provided that if the appointment
order specifies a particular back date, with
effect from which a person is substantively
appointed that date will be deemed to be
the
date
of
order
of
substantive
appointment and, in other cases, it will
mean the date of issuance of the order:

Provided further that a candidate
recruited directly may lose his seniority, if
he fails to join without valid reasons, when
vacancy is offered to him the decision of
the appointing authority as to the validity of
reasons, shall be final.
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
189

(2) The seniority inter-se of
persons appointed on the result of any one
selection: -

(a) through direct recruitment,
shall be the same as it is shown in the merit
list prepared by the Commission or by the
Committee, as the case may be;

(b) by promotion, shall be as
determined
in
accordance
with
the
principles laid down in Rule 6 or Rule7
accordingly as the promotion are to be
made from as single feeding cadre or
several feeding cadres.

(3) Where appointments are made
both by promotion and direct recruitment
on the result of any one selection, the
seniority of promotees vis -a-vis direct
recruits shall be determined in a cyclic
order (the first being a promotee) so far as
may be, in accordance with the quota
prescribed for the two sources.

Illustrations. -(1) Where the quota
of promotees and direct recruits is in the
proportion of 1: 1 the seniority shall be in
the following order-

First ... Promotee

Second ...Direct recruit

and so on.

(2) Where the said quota is in the
proportion of 1:3 the seniority shall be in
the following order-

First ...Promotee

Second to fourth . ...Direct recruit

Fifth ...Promotee

Sixth of eight ...Direct recruit

and so on.

provided that-

(i) Where appointments from any
source are made in excess of the prescribed
quota, the persons appointed in excess of
quota shall be pushed down, for seniority,
to subsequent year or years in which there
are vacancies in accordance with the quota;

(ii) Where appointment from any
source fall short of the prescribed quota and
appointment
against
such
unfilled
vacancies are made in subsequent year or
years, the persons so appointed shall not
get seniority of any earlier year but shall
get the seniority of the year in which their
appointments are made, so however, that
their names shall be placed at the top
followed by the names, in the cyclic order
of the other appointees;

(iii) Where in accordance with
the service rules the unfilled vacancies
from
any
source
could,
in
the
circumstances mentioned in the relevant
service rules be filled from the other source
and appointment in excess of quota are so
made, the persons so appointed shall get
the seniority of that very year as if they are
appointed against the vacancies of their
quota."

4. SUBMISSIONS:

Heard
Mr.
Vijay
Kumar
Srivastava and Mr. Ajay Pratap Singh,
Advocates for the petitioners, as well as
Mr.
Sandeep
Dixit,
learned
Senior
Advocate, assisted by Mr. Vijay Dixit,
Advocate, Mr. Alok Saxena, Advocate, Mr.
Ran
Vijay
Singh,
Additional
Chief
Standing Counsel for respondents and Mr.
Shobhit Mohan Shukla, Advocate for
intervener.

(i) Learned counsel for the
petitioner has submitted that in preparing
the seniority list dated 09.08.2012, the State
Government had wrongly applied the
provisions of Rule 8(3) of the Rules, 1991
as the petitioners were directly recruited on
the post of Assistant Commissioner,
Commercial Tax in the year 2005.
However,
private
respondents
were
promoted through selection held in 2009
and, therefore, it is submitted that selection
of
the
petitioners
and
the
private
respondents are different selections and
190 INDIAN LAW REPORTS ALLAHABAD SERIES
their appointments to the post of Assistant
Commissioner, Commercial Tax were not
as a result of same selection, therefore,
Rule 8(3) should not have been applied for
determining the seniority between the
petitioners
(direct
recruits)
and
the
promotees (private respondents). Seniority
list ought to have been prepared as per Rule
8(1)
from
the
respective
dates
of
substantive appointment.

(ii) It has been further submitted
that private respondents (promotee) have
been made senior to the petitioners in the
seniority list dated 09.08.2012 though they
were promoted after the appointments of the
petitioners. It is submitted that the promotee
officers have been given seniority from the
date when they were not even born in the
cadre
of
Assisstant
Commissioner,
Commercial Tax.

(iii) It has been further submitted
by learned counsel for the petitioners that for
making another selection for the post of
Assistant Commissioner, Commercial Tax
through direct recruitment, an advertisement
was issued in 2007, which got completed in
the year 2010. Persons selected and appointed
on the post of Assistant Commissioner,
Commercial Tax through direct recruitment
joined their services from December 2010
onwards. In the same year, another selection
through promotion on the post of Assistant
Commissioner, Commercial Tax from the
post of Commercial Tax Officer was held and
promotion order was issued on 28.07.2010.
Seniority of these officers was determined on
the basis of date of substantive appointment
and the promotee officers were placed en
block above direct requirements who were
appointed after date of promotion of the
promotees i.e. 28.07.2010 and, accordingly
seniority list dated 8.07.2016 was issued.

(iv)
Seniority
list
dated
08.07.2016 was challenged before this
Court by direct recruitment who were
selected in the year 2010 by filing several
writ
petitions
leading
Writ
Petition
No.19231(SB) of 2016 (Shanti Shekhar
Singh vs State of U.P. & Ors) praying
therein for fixing seniority of direct recruits
and promotees in cyclic manner as was
done in the case of the present petitioners
and private respondents in seniority list
dated 09.08.2012. This Court dismissed the
said writ petition vide judgment and order
dated 04.05.2017 and laid down principles
for determining the seniority in para 127 of
the said judgment.

(v) This Court has held that the
seniority list should be given from the date
of entry in a particular service or the date of
substantive appointment. It has been further
held that seniority cannot be reckoned from
the date of occurrence of the vacancy and
cannot be given retrospectively. Judgment
and order dated 04.05.2017 was challenged
before the Supreme Court in S.L.P. (Civil)
Diary No.8268 of 2018, however, the same
was dismissed by the Supreme Court vide
order dated 18.05.2018.

(vi) Learned counsel for the
petitioners has placed reliance on the
judgment of the Supreme Court in the case
of State of Bihar vs Arbind Jee:2021
SCC OnLine SC 821 to submit that
retrospective seniority cannot be given
from the date when the persons were not
even born in the cadre. He, therefore, has
submitted that counting the seniority of the
private respondents from the date when
they were not even born in the cadre of
Assistant Commissioner, Commercial Tax
is against the express provision of the
seniority Rules, 1991 and, the petitioners
ought to have been placed en block senior
to the private respondents in the seniority
list
dated
09.08.2012
as
they
were
appointed on
the post
of
Assistant
Commissioner Commercial Tax earlier
than the private respondents. It has been,
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
191
therefore, submitted that the impugned
seniority list dated 09.08.2012 as well as
order dated 20.03.2020 are liable to be
quashed.

(vii) On the other hand, Mr.
Sandeep Dixit, learned Senior Advocate
assisted by Mr. Vijay Dixit for private
respondents and Mr. Ranvijay Singh, Ld.
Addl. Chief Standing Counsel appearing
for State have submitted that challenge in
the writ petition is seniority list of Assistant
Commissioners, Commercial Tax dated
09.08.2012 and, the writ petition has been
filed after a delay of about 9 years.
Aforesaid seniority list was not challenged
in all these years. The said seniority list
was
acted
upon
inasmuch
as
the
promotions were made to the post of
Deputy Commissioner, Commercial Tax
from the same seniority list in the year
2014. Belated challenge by the petitioners
to the long-standing seniority list dated
09.08.2012 is to be rejected as the petition
is barred by gross delay and latches.

(viii)
It
has
been
further
submitted that the representation of the
petitioner No.8 on which the decision has
been rendered on 20.03.2020 by respondent
No.1 cannot confer a fresh cause of action
to the petitioners as delay and latches are to
be considered with reference to date on
which
impugned
seniority
list
was
published and not from the date when order
was passed on the representation of the
petitioner No.8.

(ix) It has also been submitted by
learned Senior Advocate that settled
seniority position should not be unsettled
after substantial lapse of time. Anyone who
feels aggrieved by the administrative
decision affecting one's seniority should act
with diligence and promptness. One cannot
be allowed to knock the door of the Court
after substantial lapse of time of 9 years
from the date when the final seniority list
dated 09.08.2012 was issued and acted
upon subsequently.

(x) Under Rule 8(3) of Rules,
1991, phrase ''one selection' would mean
selection in the same recruitment year. To
substantiate the said submission, learned
Senior Advocate has placed reliance on two
judgments of this Court reported in 2014
(6) AWC 6389 :Ravindra Nath Pandey
vs State of U.P. and 2015 (33) LCD 1609:
Anil Kumar vs State of U.P. & Ors.

(xi) In respect of the seniority list
dated 18.07.2016 from Serial Nos.2116 to
2702, it has been contended that the said
seniority list was issued in respect of the
persons who have been appointed through
direct recruitment and promotion on the
post
of
Assistant
Commissioner
Commercial Tax in different years after
2009. For each recruitment year, different
provisions of Rules, 1991 were applied as
can be seen that for recruitment year 200910 to 2012-13 Seniority list was prepared
based on provisions of Rule 8(1) and 8(2)
of the Rules, 1991 whereas in the
recruitment year 2013-14, Rule 8(3) of the
Rules, 1991 was applied.

(xii) It has been further submitted
that since selection was made in case of the
petitioners and private respondents in the
same recruitment year as such provisions of
Rule 8(3) would apply. Provisions of Rule
8(1) is subject to provisions of Rule 8(3)
and, therefore, the seniority of promotees
and direct recruits for the recruitment year
2008-09 was determined on rotation in the
ratio of 1:1. It has been further submitted
that judgment of Shanti Shekhar Singh
(supra) while considering the dispute with
respect to inter se seniority of promotees
and direct appointment did not take into
consideration the law laid down by the
Division Bench of this Court in the case of
Ravindra Nath Pandey (supra) which is of
equal strength and, it appears that the
192 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment passed in the case Shanti Shekhar
Singh (supra) is per incuriam.

(xiii) Mr. Shobhit Mohan Shukla,
learned counsel appearing for interveners has
submitted that the promotions were made
from the same seniority list dated 09.08.2012
to the post of Deputy Commissioner and,
after a gap of around 9 years when promotion
to the next higher post of Joint Commissioner
is due and in process, the petitioners have
come to this Court assailing the said seniority
list. He has further submitted that applicants
are much higher in gradation list than the
petitioners. Therefore, even if the writ
petitions are allowed, the applicants would
remain above the petitioners in the gradation
list. However, on account of filing of the
present writ petitions, promotion of the
applicants
in
pursuance
to
the
recommendation
of
the
Departmental
Promotion Committee is held up. Mr.
Shobhit Mohan Shukla, learned counsel has
submitted that the Departmental Promotion
Committee has considered the promotion
against 19 posts of Joint Commissioner
which are existing and accruing in near
future. The applicants are facing hardship as
their promotion is held up because of the
pendency of the present writ petitions though
they would remain senior to the petitioners as
well as private respondents even if the writ
petitions stand allowed.

(xiv) Mr. Shobhit Mohan Shukla,
learned
counsel
has
supported
the
submissions advanced on behalf of Mr.
Sandeep Dixit, learned Senior Advocate
with respect to gross delay and latches in
challenging
the
seniority
list
dated
09.08.2012.

5.ANALYSIS:-

(i) It is admitted position that the
seniority list of the petitioners and private
respondents is to be prepared in accordance
with Government Servants Seniority Rules,
1991. The question which arises for
consideration is whether inter-se seniority
of the petitioners and private respondents is
to be determined from the date of their
substantive appointment in accordance with
Rule 8 (1) or it is to be determined in
accordance with Sub-Rule 3 of Rule 8 of
the Seniority Rules 1991?

(ii) From perusal of Rule 8, it is
evident that under Sub-Rule 1, seniority is
to be determined from the date of the order
of substantive appointment unless the
appointment order specifies a particular
back date with effect from which a person
would be deemed to be substantially
appointed but in other cases, date of
issuance of the order of appointment would
be date of substantive appointments. Under
Sub-Rule 2 of Rule 8 inter se seniority of
persons appointed on the result of any one
selection shall be same as shown in the
merit list prepared by the Commission.

(iii) Sub-Rule 3 of Rule 8 deals
with a situation where appointments are
made both by promotion and direct
recruitment on the result of any ''one
selection'. The sub rule (3) provides that in
such a case, the seniority of promotees visa-vis direct recruits is to be determined in a
cyclic order 'the first being a promotees' in
accordance with the quota prescribed for
two sources where the quota of promotees
and direct recruits is in the ratio of 1:1, the
first person in the seniority list shall be
promotee officer and the second shall be
direct recruit and so on and so forth.

(iv) Final seniority list dated
09.08.2012 of the Assistant Commissioner,
Commercial Tax from Serial Nos.1732 to
2115 was finalized and issued as per
provisions of Rule 8(3) of Rules, 1991 and
the promotees and direct recruits for the
recruitment year 2008-09 were placed in
ratio of 1:1.
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
193

(v) The issue regarding what is
the import and purport of phrase ''one
selection' occurring in sub-rule (3) has to be
dealt with first before proceeding further in
the
matter.
Ordinarily,
appointments
through direct recruit and promotion to a
post are not made by one selection
inasmuch as direct recruitment to the post
of Assistant Commissioner in the present
case is made by the Uttar Pradesh Public
Service Commission through competitive
examination whereas promotion is made by
the Departmental Promotion Committee
constituted for the said purpose.

(vi) This Court in the case of
Ravindra Nath Pandey vs State of U.P.:
2014(6) AWC 6389 has held that Sub-rule
3 of Rule 8 of Rules, 1991, should be
construed in such a manner so that rule
does not become inoperative. It has been
held that phrase "one selection" occurring
in Rule 8(3) should be construed to mean
the selection made in the same ''year of
recruitment' and seniority of all persons
who are appointed by direct recruitment or
promotion in the same recruitment year,
should be determined as per Rule 8(3) of
Rules, 1991.

(vii) Paragraphs 27 and 31 of the
said judgment are relevant for the purpose
of present case which are extracted
hereunder:-

"27. In view of above, sub Rule (3)
of Rule 8 of 1991 Seniority Rules should be
construed in such a manner which may not
make the rule inoperative. Further external
aid from 1992 Service Rules may be taken
while interpreting 1991 Seniority Rules for
removal of ambiguity and doubt, if any.

.............28. So far as the mandate
contained in Rule 8(3) of 1991 Seniority
Rules to the effect where appointments are
made
both
by
promotion
and direct
recruitment on the result of one selection,
seniority of promotees and direct recruits will
be determined by a cyclic order, is concerned,
since admittedly and ordinarily, in one
selection, appointment and direct recruitment
may not be done, then while construing the
provisions
harmoniously,
the
provision
contained in Sub Rule (3) may be interpreted
relating it to the ''year of recruitment' as
defined by Sub Rule (m) of Rule 3 of 1992
Rules. It means all persons who have been
appointed by direct recruitment or by
promotion in a recruitment year shall be
entitled to be considered for seniority in
pursuance to 1991 Seniority Rules. The
seniority list shall contain the names of
officers in order of their recruitment against
substantive vacancy relating back to the
recruitment year. The appointment should
have been done in accordance with rules."

(viii) This Court in the case of
Arun Kumar Saxena vs State of U.P. &
Ors : 2008 (6) AWC 6474 while interpreting
Clause 3 or Rule 8 of Rules, 1991 has held
that Rule 8(3) contemplates determination of
seniority
between
direct
recruits
and
promotees as a result of ''one selection',
meaning thereby that the aforesaid Rule will
have application only where appointments
both by direct recruitment and the promotion
are made as a result of ''one selection'. If
selections are made in different recruitment
years, Rule 8(3) will have no application. It
means that Rule 8(3) would come into play
when selection is made by direct recruitment
as well as by promotion in the same
''recruitment year' and not otherwise.

(ix) This Court in the case of Anil
Kumar vs State of U.P. [2015 (33) LCD
1609] while interpreting phrase 'one
selection' has held that as there cannot be
one selection for direct recruitment and
promotion,
therefore,
one
selection
according to Rule 8(3) can only mean
"selection in the same year"

Para 9 of the aforesaid judgment
which is extracted hereunder:-
194 INDIAN LAW REPORTS ALLAHABAD SERIES

"9.Now coming to the validity of
the rejection order dated 18.5.2006 we find
that the source of recruitment on the post of
State Radio Officer is promotion. Direct
recruitment has been permitted as an
alternative in the event no eligible person is
available for promotion. Nevertheless,
considering the fact that both direct
recruitment and promotion to the post in
question was made in the same recruitment
year, a combined list ought to have been
prepared as per the said provisions of Rule
16, 17 and 18 of the Rules 1979 wherein
the promotee officer should have been
placed first. As the source of recruitment
under Rule 5 (iii) is promotion, therefore,
the promotee officer ought to have been
placed above for this reason also. On the
same analogy a combined list ought to have
been prepared under Rules 16 and 17 and
based thereon the combined appointment
orders ought to have been issued placing
the names in the same order as they figure
in the seniority list prepared under Rules 16
and 17, but it does not appear to have been
done. Even under Rule 8(3) of the Seniority
Rules, 1991 the placement in the seniority
list where appointments are made both by
promotion and direct recruitment, the
seniority of promotee viz a viz direct
recruit shall be determined in a cyclic order
(the first being a promotee), as far as may
be, in accordance with the quota prescribed
for the two sources, though no quota is
prescribed for such direct recruitment,
nevertheless, considering the peculiar facts
of the case and the proviso to Rule 5 (iii) of
the Rules 1979, the principle applicable in
Rule 8(3) of the Seniority Rules, 1991
should have been applied and based
thereon the seniority ought to have been
determined. As there cannot be "one
selection" for direct recruitment and
promotion, therefore, the words mentioned
in Rule 8(3) can only mean selection in the
same year. In these circumstances the order
of rejection can also not be sustained."

(x) Thus, one selection occurring
in Rule 8(3) of Rules,1991 means in the
same year. If appointments are made to a
post
by
direct
recruitment
and
by
promotion as per their quota in the same
''recruitment year', then their inter se
seniority is to be determined applying the
provisions of Rule 8(3) of Rules, 1991.

(xi) ''Recruitment year' or ''year of
recruitment' is defined under Rules, 1983 to
mean 12 months commencing from 1st day
of July of calendar year. Rule 3(o) defines
''year of recruitment' which is reproduced
hereinbelow:-

"3.(o)
''Year
of
recruitment'
means
a
proof
of
twelve
months
commencing from the first day of July of
calendar year."

(xii) The term ''recruitment year'
does not mean the year in which,
recruitment is initiated or the year in which
vacancy arises. The Supreme Court has
held that contrary view expressed in Union
of India vs N.R. Parmar: (2012) 13 SCC
340 is not correct view. The Supreme Court
has defined ''recruitment year' means the
year in which the recruitment takes place
i.e., by issuing of an appointment letter.
''Recruitment year' would not mean when
vacancy occurred for a post as it is not
incumbent upon the Government to fill up
the post as soon as the vacancy arises. In
the case of Harish Chandra Ram Vs
Mukh Ram Dubey, 1994 Supp (2) SCC
490 in para 5, it has been held as under: -

"5. In view of the afore stated
resolutions, it is clear that the general
candidates will not be considered for
promotion to the post for SC, ST or BC
reserved
candidates.
The
reserved
candidates even if they are not available, it
is settled law that unless de reservation is
done the vacancy will not be thrown open
10 All. Rajesh Kumar Tandon & Ors. Vs. State of U.P. & Ors.
195
to the general category. It is not incumbent
upon the Government as soon as the
vacancy arises that it must be filled by
recruiting the candidates either by direct
recruitment or promotion from feeder cadre
or by transfer. So, as and when recruitment
takes place the cases of all the candidates
including reserved candidates must be
considered according to rules which would
arise only when recruitment takes place.
Take for instance a hypothetical case. A
and B are eligible for consideration and
were considered in 1980 for two vacancies
and B was found suitable and was
appointed to one vacancy in 1982. One
more vacancy arose in 1983. In the year
1983, A, C and D were considered. A and
D were promoted in 1984. The recruitment
years are 1982 and 1984, and not 1980
when one vacancy existed or 1983 when
two vacancies existed. So, each year is not
the year of recruitment. As and when
recruitment takes place in a particular year,
it would be the year of recruitment."

(Emphasis Supplied)

(xiii)
Recruitment
means
appointment
after
completion
of
recruitment
process.
Recruitment
and
appointment are not two different concepts
in
service
jurisprudence.
Unless
the
selection is complete in all respects to a
post, it cannot be said that a person has
been recruited to the service. In the case of
direct recruits, the process of recruitment
starts with invitation of applications by the
Commission, and in case of promotion, it
begins with the nomination made by the
competent authority by holding D.P.C.
However, in both cases final selection gets
completed when appropriate orders for
appointment
are
issued.
Until
final
selection is made, and appropriate order is
issued for appointment, no person can be
said to have been recruited in the service.
Persons
appointed
through
direct
recruitment and by promotion cannot claim
seniority from the date when the vacancies
occur in their respective quota, but it must
be
determined
when
final
recruitment/appointment is made after
selection/recruitment process. It is well
settled that year in which vacancy occurs is
not
relevant
for
the
purposes
of
determining the seniority irrespective of the
year when a person is recruited.

(xiv) The Supreme Court in the
case of Jagdish Ch. Patnaik vs State of
Orissa : (1998) 4 SCC 456 in para 32 has
explained the aforesaid concept as under:-

"32.