# Ravindra Nath Pandey (S/S 6985/2005) v. State of U.P

- **Citation:** (2014) 3 ILRA 1251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-04
- **Case number:** Special Appeal No. 625 of 2008
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-nath-pandey-s-s-6985-2005-v-state-of-u-p-43115
- **Pages:** 10

## Headnote

U.P. Revenue Consolidation Service Rules
1992-Rule 8(8) read with U.P. Government
Servants Seniority Rules 1991-Rule-8(3)-
Seniority-Assistant Consolidation Officerappointed under promotion
quota on
16.12.97-where
as
direct
recruitment
August 97-learned Single Judge heldpromotee be placed above than direct
recruitee-held-recruitment year according
to Rule 2 of 1991 material-when Rota Rule
available in Rule-preparation of seniorityit should be followed-to this extent order
passed by Single Judge is modified.
Held: Para-31 & 37

## Text

3 All]. Sri Vikas Gupta Vs. M/s Shri Ram Mahadev Prasad & Anr.
1251
10. As regards the submission of Sri
Asthana that the Order XX Rule 4 and 5
of CPC makes it clear that the Judge,
Small Cause Courts should frame the
issue for determination hardly merit
acceptance. The Order XX Rule 4 and 5
of CPC reads as under;
"44. Judgments of Small Cause
Courts.---(1) Judgments of a Court of
Small Causes need not contain more than
the points for determination and the
decision thereon.
(2) Judgments of other Courts.---
Judgments of other Courts shall contain a
concise statement of the case, the points
for determination, the decision thereon,
and the reasons for such decision.
5. Court to state its decision on each
issue.---In suits in which issues have been
framed, the Court shall state its finding or
decision, with the reasons therefor, upon
each separate issue, unless the finding
upon any one or more of the issue is
sufficient for the decision of the suit."
11. A simple reading of aforesaid
Rules 4 and 5 make it clear that the
judgment of a Court of Small Causes need
not contain more than the points for
determination and the decision thereon,
whereas judgements of other Courts shall
contain a concise statement of the case,
the points for determination, the decision
thereon, and the reasons for such decision.
12. The distinction between sub rule
(1) and (2) of Rule 4 of Order XX of the
CPC by itself is sufficient to indicate that the
Small
Causes
Court
is
a
summary
proceedings and detailed reasons are not
required to be given in judgements. The point
for determination does not need for framing
an issue and there is no need for the procedure
applicable for the regular civil suits. In case
the detail procedure of regular suit is also
followed in the matter of the Small Causes
Court, the very object of the Act No. 9 of
1887 shall be frustrated. Therefore, the
submission of the learned Counsel for the
revisionist does not stand to reasons.
13. After careful consideration of
the matter, I am of the view that framing
of the issue in the suits under the Act No.
9 of 1887 is not mandatory. It is
discretion of the court to formulate some
points for determination, if it needs it is
necessary to meet the ends of justice, but
framing of the issue like a regular suit, as
stated above, would be against the object
of the Act to dispose of small matters
expeditiously.
14. Resultantly, the order of the
court below does not suffer any error
hence Civil Revision is liable to be
dismissed. Accordingly, it is dismissed.
15. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2014
BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.
Special Appeal No. 625 of 2008
Connected with Special Appeal (D) No.
186 of 2009, 662 of 2008, 669 of 2008
and Special Appeal No. 631 of 2008
Ravindra Nath Pandey (S/S 6985/2005)
...Appellant
Versus
State of U.P.
...Respondent
Counsel for the Appellant:
Sri Rajan Roy, Sri Rahul Srivastava
1252
 INDIAN LAW REPORTS ALLAHABAD SERIES
Ranjana Agnihotri, Sudha Sharma
Counsel for the Respondent:
C.S.C., Sri Gyanendra Kumar Srivastava
Sri Y.K. Mishra
U.P. Revenue Consolidation Service Rules
1992-Rule 8(8) read with U.P. Government
Servants Seniority Rules 1991-Rule-8(3)-
Seniority-Assistant Consolidation Officerappointed under promotion
quota on
16.12.97-where
as
direct
recruitment
August 97-learned Single Judge heldpromotee be placed above than direct
recruitee-held-recruitment year according
to Rule 2 of 1991 material-when Rota Rule
available in Rule-preparation of seniorityit should be followed-to this extent order
passed by Single Judge is modified.
Held: Para-31 & 37
31. So far as the mandate contained in Rule
2 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
promotee 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.
37.
In (2000)7 SCC 561 Suraj Parkash
Gupta and others versus State of J & K and
others, Hon'ble Supreme Court held that
even if on account of delay and lethargic
attitude
of
the
State
Government,
promotion and appointment is delayed, it
does not lead to an inference that the quota
rule has broken down and where there is no
explicit provision with regard to rota rule,
then rota rule may not be applied.
Employees cannot claim rota merely on the
basis of post and perks.
Case Law discussed:
(2001) 2 SCC 441; (2002) 8 SCC 409; (2002) 4
SCC 297; (2002) 4 SCC 105; UOI (2004) 1 SCC
256; A.P.SRTC (2004) 6 SCC 729; (2004) 11
SCC 625; (2004) 5 SCC 385; (2005) 3 SCC
551; (2007) 6 SCC 81; (2007) 10 SCC 528;
(2007) 7 SCC 394; 2010 (9) SCC 280; 2010 (7)
SCC 129; 1992 Supp. 1 SCC 272; (2007) 1
SCC 683; (2005) 8 SCC 454 D; (1996) 11 SCC
361.
(Delivered by Hon'ble Devi Prasad Singh, J.)
1. These special appeals under the
Rules of the Court (Chapter VIII Rule 5)
have been preferred, being aggrieved with
the judgment and order dated 29.9.2008,
passed by learned Single Judge in writ
petition No.6015(S/S) of 2005 and other
connected petitions deciding an issue
relating to inter se dispute between the
direct recruits and promotees in the cadre
of Assistant Consolidation Officer.
2.
We have heard Mr. R.K. Tiwari,
learned Senior counsel, Mr. Shobhit Mohan
Shukla and other counsels on behalf of the
appellants as well as Mr. S.K. Kalia, learned
Senior Counsel and others representing the
respondents.
3.
Controversy relates to inter se
seniority
of
the
cadre
of
Assistant
Consolidation
Officers
between
direct
recruits and promotees in pursuance to U.P.
Government Servants Seniority Rules, 1991
(in short, 1991 Seniority Rules).
4. It has been admitted at bar that the
direct
recruits
were
appointed
on
18.8.1997 whereas the promotees were
3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P.
1253
promoted on the post of Assistant
Consolidation Officer on 16.12.1997
within their quota (67%) in pursuance to
U.P. Revenue Consolidation Service
Rules, 1992 (In short, 1992 Rules).
Promotions were done within the quota on
the post of Assistant Consolidation
Officer from the persons who were
working on the post of Consolidators.
5.
Under these admitted facts on
record, it has been argued by the
appellants' counsel that the direct recruits
are entitled to be placed over and above
the promotees since they were appointed
earlier than the promotees, i.e. in the
month of August, 1997.
It has been further argued by the
appellants' counsel that the learned Single
Judge while allowing the writ petitions
directed that all the promotees who were
promoted and appointed in the year 1997
should be placed over and above the
direct recruits ignoring the roster. Learned
Single Judge while allowing the writ
petition has not only directed to place the
promotees over and above direct recruits
but also directed for en-block placement
of all the promotees promoted in the year
1997 over and above direct recruits.
6. On the other hand, Mr. S.K.
Kalia, learned Senior Counsel submits
that since the direct recruits as well as the
promotees were appointed in the same
recruitment year in accordance with rules,
the promotees were entitled to be placed
over and above the direct recruits in
accordance with rules.
7. 1991 Seniority Rules framed
under the proviso to Art. 309 of the
Constitution of India have overriding
effect (Rule 3) and deals with the matter
with regard to determination of seniority.
According to Sub Rule (h) of Rule 4,
substantive appointment has been defined
as appointment, not being an ad hoc
appointment, on a post in the cadre of the
Service,
made
after
selection
in
accordance with the service rules of the
respective services.
8. Rule 5 deals with determination
of seniority where appointment is done by
direct recruitment only and Rule 6 deals
with the situation where seniority is liable
to be determined in a situation where
appointment is done only by promotion
from a single feeding cadre. Rule 7 deals
with a situation where appointment by
promotion is done from several feeding
cadres. However, Rule 8 deals with a
situation where appointments are done by
promotion and direct recruitment. Rule 8
is
relevant
for
the
purpose
of
determination of present controversy. For
convenience, Rule 8 is reproduced as
under :
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
1254
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
(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 Rule 7,
as the case may be, according as the
promotion are to be made from a 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-`-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 Recruits
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 Recruits
Fifth .. .. .. Promotee
Sixth of eight .. .. Direct recruits
and so on
Provided that :
(i) where appointment 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."
9. Thus, under Sub Rule (1) of Rule
8, seniority is to be determined from the
date
of
the
order
of
substantive
appointment. The proviso of Sub Rule (1)
provides 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 but in other cases
3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P.
1255
it will mean the date of issuance of the
order. In the event of direct recruitment,
the direct recruit shall lose seniority if he
fails to join without valid reasons, when
vacancy is offered to him. Under Sub
Rule (2) of Rule 8, inter se seniority of
persons appointed on the result of any one
selection shall be the same as shown in
the
merit
list
prepared
by
the
Commission.
10. However, under Sub Rule (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
should be determined in a cyclic order
(the first being a promotee) in accordance
with the quota prescribed for the two
sources. Where the quota of promotees
and direct recruits is in the proportion of
1:1, the first shall be promotee and second
shall be direct recruit but where the quota
is in the proportion of 1:3, the seniority
list shall give first place to promotee,
second to fourth to direct recruits, fifth to
promotee and sixth of eight to direct
recruits. However, this shall be subject to
certain conditions provided under the
proviso to Rule 8 (supra).
11. Much emphasis has been given
by the learned counsel for the appellant to
the words, used in Sub Rule (3), "where
appointments are made both by promotion
and direct recruitment on the result of any
one selection".
It is agreed at bar that ordinarily, it is
not possible to make selection through
direct recruitment and promote persons in
a single selection process.
12. In District Mining officer vs.
Tata Iron and Steel co. (2001) 7 SCC 358,
Hon'ble Supreme court has held that
function of the court is only to expound
the law and not to legislate. A statute has
to be construed according to the intent of
them and make it the duty of the court to
act upon true intention of the legislature.
If a statutory provision is open to more
than one interpretation, the court has to
choose the interpretation which represents
the true intention of the legislature.
13. In Krishna vs. state of
Maharashtra (2001)2 SCC 441: Hon'ble
Supreme court has held that, in absence of
clear words indicating legislature intent, it
is open to the court ,when interpreting any
provision , to read with other provision of
the same statute.
14. In Essen Deinki vs. Rajiv Kumar
(2002)8 SCC 409, it has been observed
that it is the duty of the court to give
broad interpretation keeping in view the
purpose of such legislation of preventing
arbitrary
action
.however
statutory
requirement can not be ignored.
15. In Grasim industries ltd. vs.
Collector of Custom (2002) 4 SCC297, it
has been held that while interpreting any
word of a statute every word and
provision should be looked at generally
and in the context in which it is used and
not in isolation.
16. In Bhatia international vs. Bulk
trading S.A. (2002)4 SCC 105, it has been
held that where statutory provision can be
interpreted in more than one way , court
must identify the interpretation which
represents the true intention of legislature.
While deciding which is the true meaning
and intention of the legislature, court must
consider the consequences that would
result
from
the
various
alternative
constructions. Court must reject the
1256
 INDIAN LAW REPORTS ALLAHABAD SERIES
construction which leads to hardship,
serious inconvenience, injustice, anomaly
or uncertainty and friction in the very
system that the statute concerned is
suppose to regulate.
17. In S.Samuel M.D. Harresons
Malayalam vs. UOI (2004)1 SCC 256, it
has been held that when a word is not
defined
in
the
statute
a
common
parallence
meaning
out
of
several
meanings provided in the dictionaries can
be selected having regard to the context in
which the appeared in the statute.
18. In M. Subba Reddy vs. A.P.
SRTC (2004) 6 SCC 729, it has been held
that although hardships can not be a
ground for striking down the legislation,
but where ever possible statute to be
interpreted to avoid hardships.
19. In Delhi Financial Corpn. Vs.
Rajiv Anand (2004)11 SCC 625, it has
been held that legislature is presumed to
have made no mistake and that it intended
to say what it said. Assuming there is a
defect or an omission in the words used
by the legislature , the court can not
correct or make up the deficiency ,
especially where a literal reading there of
produces an intelligible result .the court is
not authorized to alter words or provide a
casus omissus.
20. In Deepal Girish bhai soni vs.
United India insurance ltd. (2004) 5 SCC
385, it has been held that statute to be
read in entirety and purport and object of
Act to be given its full effect by applying
principle of purposive construction.
21. In Pratap Singh vs. State of
Jharkhand (2005) 3 SCC 551, it has been
held that interpretation of a statute
depends upon the text and context there of
and object with which the same was
made. It must be construed having regard
to its scheme and the ordinary state of
affairs and consequences flowing there
from - must be construed in such a
manner so as to effective and operative on
the principle of "ut res magis valeat quam
pereat". When there is to meaning of a
word and one making the statute
absolutely vague, and meaningless and
other
leading
to
certainty
and
a
meaningful interpretation are given, in
such an event the later should be
followed.
22. In Bharat petroleum corpn.ltd.
vs. Maddula Ratnavali (2007) 6 SCC 81,
it has been observed that Court should
construe a statute justly. An unjust law is
no law at all. Maxim "Lex in justa non
est."
23. Deevan Singh vs. Rajendra Pd.
Ardevi (2007)10 SCC528, it has been
held that while interpreting a statute the
entire statute must be first read as a whole
then section by section , clause by clause ,
phrase by phrase and word by word .the
relevant provision of statute must thus
read harmoniously.
24. In Japani sahoo vs. Chandra
shekhar mohanty (2007) 7 SCC 394, it
has been held that a court would so
interpret a provision as would help
sustaining the validity of law by applying
the doctrine of reasonable construction
rather than making it vulnerable and
unconditional by adopting rule of literal
legis.
25.
In 2010 (9) SCC 280, Zakiya
Begum Vs. Shanaz Ali, it has been held that
an Explanation to a section should normally
3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P.
1257
be read to harmonise with and clear up any
ambiguity in the main section and normally
not to widen its ambit.
26. In 2010 (7) SCC 129, Bondu
Ramaswamy Vs. Bangalore Development
Authority, it has been observed that an
interpretation that would avoid absurd
results should be adopted - When the
object or policy of a statute can be
ascertained, imprecision in its language
not to be allowed in the way of adopting a
reasonable construction which avoids
absurdities and incongruities and carries
out the object or policy.
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. Accordingly, the provisions
contained in Sub Rule (3) of Rule 8
should be construed harmoniously to
make it effective after taking into account
the other rules as well as the purpose and
object of the rule.
29. 1992 Rules deals with the
service conditions of Asstt. Consolidation
Officer and Consolidation Officer. Rule
22 of 1992 Rules provides that the
seniority
of
persons
substantively
appointed in any category of posts shall
be determined in accordance with 1991
Rules (supra). Sub Rule (m) of Rule 3
defines the year of recruitment as under :
""year of recruitment" means a
period of twelve months commencing
from the first day of July of calendar
year."
Rule 19 deals with appointment on
the respective posts. For convenience,
Rule 19 is reproduced as under :
"19. appointments :- (1) Subject to
the provisions of sub-rule (2) the
appointing
authority
shall
make
appointment by taking the names of
candidates in order in which they stand in
the list prepared under Rule 15, 16 or 17,
as the case may be.
(2) 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.
(3) If more than one orders of
appointments 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 the case
may be, as it stood in the cadre from
which
they
are
promoted.
If
the
appointments are made both by direct
recruitment and by promotion, names
shall be arranged in accordance with the
cyclic order referred to in Rule 18."
Under Sub Rule (2) of Rule 19, it has
been provided that in every recruitment
year, appointment shall be made both by
direct recruitment and by promotion, i.e.
from both sources.
30. Under Sub Rule (3) of Rule 19,
it
has
been
provided
that if the
appointments are made both by direct
recruitment and by promotion, names
shall be arranged in accordance with the
cyclic order referred to in Rule 18. It
means a roster shall be provided in terms
1258
 INDIAN LAW REPORTS ALLAHABAD SERIES
of rule 18 in the cadre of Assistant
consolidation Officer containing direct
recruits and promotees. Since 1991
Seniority Rules have got overriding
effect, so far as seniority is concerned,
roster shall be in accordance with Sub
Rule (3) of Rule 8(supra). In case the
number of candidates are not available to
apply roster for each and every person
selected through direct recruitment and
promotion, then remaining may be placed
in block at appropriate place in the
seniority list.
31. So far as the mandate contained
in Rule 2 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
promotee 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.
32. So far as the order passed by
learned
Single
Judge
for
enblock
placement of promotees is concerned, it
seem to be contrary to Rules (supra)
which provides roster for the placement of
promotees and direct recruits in a cyclic
manner. To that extent, the impugned
order passed by learned Single Judge
required to be modified. It shall be
appropriate to consider some of the cases,
relied upon by learned counsels.
33. In the case of Uttaranchal forest
Rangers versus State of U.P and others
JT2006(12)SC513, their Lordships of
Hon'ble Supreme court held that no
retrospective promotion or seniority can
be granted from a date when an employee
has not even been borne in the cadre so as
to be adversely appointed validly in the
meantime. Supreme Court relied upon
earlier judgment reported in 1992 Supp. 1
SCC 272 Keshav Chandra Joshi and
others versus Union of India and others. It
means seniority may be given to direct
recruits only from the date they were
appointed or joined service and not earlier
to it. While interpreting Rule 8(1) of
Seniority Rules, 1991, the conferment of
seniority to an employee from a previous
date provided that the date of such
conferment
along
with
substantive
appointment is mentioned in the order of
substantive appointment which seems to
exist in the case of Uttaranchal but such
provision does not seem to exist in the
Service Rules in question.
While interpreting Rule 8(3) of the
Service Rules(supra), Hon'ble Supreme
court observed as under :
"Rule 8(3) of the Rules is not
applicable in this case because the
appointments were not made by both the
direct
and
promoted
sources
of
recruitment as a result of one selection.
Moreover, definite quota is not prescribed
for the two sources of appointment ? As
3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P.
1259
per Rule 8 of the Seniority Rules, there is
a provision 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.
This implies that there is a provision of
vacancies
of
being
carried
over.
Moreover, it is also in the interest of
natural
justice
that
employees
are
promoted from the date they become
eligible and the vacancy exits. Otherwise,
it would result in denying promotion to
them for no fault of theirs and only
because
of
not
holding
selection
procedure on time for which they cannot
be held responsible. As far as Rule 8(3) is
concerned, it applies to one selection
made both for promotion and direct
recruitment, which is not the case under
consideration."
34. In views of above, since
selection and promotion has not been
done in a single process, seniority may be
considered
as
observed
hereinabove
keeping in view the year of recruitment.
35.

Their
Lordships
further
proceeded to hold that no seniority can be
granted from the date when an employee
was even not borne in the cadre. To quote
relevant portion :
"We are also of the view that no
retrospective promotion or seniority can
be granted from a date when an employee
has not even been borne in the cadre so as
to be adversely appointed validly in the
meantime, as decided by this court in the
case of K.C. Joshi & others vs. Union of
India, 1992 Suppl (1) SCC 272 held that
when promotion is outside the quota,
seniority would be reckoned from the date
of the vacancy within the quota rendering
the previous service fortuitous."
36. In the State of Uttaranchal and
another versus Dinesh Kumar Sharma
(2007)1 SCC 683, Hon. Supreme Court
ruled that the seniority should be
reckoned from the date of substantive
appointment and not from the date of
occurrence of vacancy. The provisions
contained in the Rules cannot be ignored.
While dealing with the matter with regard
to Service Rules of U.P. Agriculture
Group B, their Lordships further held that
there can be no automatic appointment
/promotion on mere recommendation of
PSC unless Government sanctions such
appointment/promotion.
37. In (2000)7 SCC 561 Suraj
Parkash Gupta and others versus State of
J & K and others, Hon'ble Supreme Court
held that even if on account of delay and
lethargic
attitude
of
the
State
Government, promotion and appointment
is delayed, it does not lead to an inference
that the quota rule has broken down and
where there is no explicit provision with
regard to rota rule, then rota rule may not
be applied. Employees cannot claim rota
merely on the basis of post and perks.
However, in the present case, rota
rule has been provided under both the
Service Rules (supra), hence that should
be applied while preparing the seniority
list.
38. In Special Appeal No.1304 of
2003 Arun Kumar Saxena versus State of
Uttar Pradesh and others, this Court has
observed that under proviso 3 of Rule
8(3) (supra), a promotee shall be entitled
for seniority from the date of promotion
subject to fulfillment of other conditions.
1260
 INDIAN LAW REPORTS ALLAHABAD SERIES
While considering Clause (3) of Rule 8,
this Court held as under :
"Clause (3) or Rule 8 of 1991 Rules
provides for the inter se seniority of direct
recruits and promotees to be appointed on
the basis of one selection and illustrations
1 and 2 thereto provide for the manner in
which
the
direct
recruits
and
the
pro9motees are to be adjusted. Thereafter
there are three provisions (i) to (iii) to the
sub rule 3 of rule 8. However, it must be
remembered that the provisos are to be
read in a manner to suggest that
something is being carved out from the
main clause. As already noticed above,
Rule
8(3)
itself
contemplates
determination of seniority between the
pro9motees and direct recruits as a result
of any one selection, meaning thereby that
the aforesaid rule will have application
only where appointments both by direct
recruitments and promotions are being
made as a result of one selection. If
selections are made in different years,
Rule 8(3) will have no application, as a
result whereof the proviso to the aforesaid
Rule would also not apply."
39. However, the 1992 Rules as well
as applicability of rota rule seems to have
not been considered. Attention of this
Court has not been invited to any finding
with regard to applicability of rota rule
under Rule 8(8) read with the provisions
contained in 1992 Rules (supra) by
Hon'ble Supreme Court.
40. In (2005)8 SCC 454 D. Ganesh
Rao Patnaik and others versus State of
Jharkhand and others, their Lordships
interpreted the definition of cadre and
considered the right of the employees
appointed within and beyond the quota.
41. In (1996) 11 SCC 361 M.S.L.
Patil, Asstt. Conservator of Forests,
Solarpur (Maharashtra) and others versus
State of Maharashtra and others, the
question before the Supreme Court relates
to binding nature of judgment and
interpretation
of
Civil
Services
Regulations of Seniority Rules which
does not seem to be applicable in the facts
of the present case. However, their
Lordships
of
Supreme
Court
have
reiterated the principle emerging from the
case of Keshav Chandra Joshi (supra).
42. In view of above, the impugned
order passed by learned Single Judge does
not seem to suffer from any impropriety
or illegality subject to modification that
keeping in view the Service Rules in
question (supra), rota should be applied
by the authorities of direct recruits and
promotees appointed in one recruitment
year. Accordingly, the order passed by
Hon'ble Single Judge is modified to the
extent that the State shall apply rota
system to direct recruits and promotees
appointed in one recruitment year.
The appeal is allowed in part
accordingly.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 840 of 2014
Additional Director General of P.H.Q. &
Ors.
 Appellants
Versus
Radhey Shyam Sharma
...Respondent