Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6967 OF 2013

(Arising out of SLP (C) No. 31481 of 2010)

State of Uttar Pradesh & Others ...

Appellants

Versus

Ashok Kumar Srivastava & Anr. ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The 1

st

respondent was appointed as a Lecturer on

23.3.1996 in “Ras Shastra” in Rajkiya Ayurvedic College

and Chikitsalaya, Lucknow. The State Government vide

notification dated 21.12.1990 notified the Service Rules,

namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya

Aadhyapako Ki Seva Niyamawali, 1990 (for short, “the

rules”) for the teachers of Uttar Pradesh Ayurvedic

Colleges. Under the rules, the promotional post from

amongst the Lecturers is Readers. As the vacancies in

Page 2 respect of Readers were not filled up, the respondent No.

1 preferred W.P. No. 1136 (S/B) of 2004 before the High

Court of Judicature at Allahabad at Lucknow Bench,

Lucknow, wherein the High Court took note of the

statement by the learned counsel for the State and

directed that it should be in the fitness of things that the

Public Service Commission shall make earnest efforts to

expedite the whole process relating to promotion within a

period of six months. Eventually, on 15.6.2005 the U.P.

Public Service Commission, (for short ‘the Commission’),

the respondent No. 2 herein, recommended the names of

six persons for promotion to the post of Readers. As far as

the respondent No. 1 is concerned, he was placed at serial

No. 6 and it was mentioned therein that the vacancy in

respect of which the 1

st

respondent had been

recommended for promotion had arisen after the

superannuation of one Dr. Hari Shanker Pandey on

31.7.2001. The state Government considering the

recommendation of the commission issued an office

memorandum on 16.8.2005 promoting the 1

st

respondent

and given him the posting in State Auyrvedic College,

2

Page 3 Lucknow. As the 1

st

respondent was given seniority w.e.f.

16.8.2005 which is the date of passing of the order of

promotion he felt aggrieved and the said grievance

compelled him to prefer O.A. No. 134 of 2006 before the

U.P. State Public Service Tribunal (for short “the tribunal”).

The tribunal by order dated 2.2.2007 directed that the

applicant therein should submit a representation to the

Government within a period of one month against the

order dated 16.08.2005 which shall be disposed of within

two months by passing a reasoned order. In pursuance of

the aforesaid order the State of U.P. vide letter dated

4.6.2007 sought a clarification from the Commission about

its recommendation and after receipt of the said

communication from the Commission and on due

deliberation vide order dated 2.1.2008 the representation

of the 1

st

respondent was rejected and it was clearly

stated that seniority had been accorded to him from the

date of passing of the order of promotion i.e. 16.8.2005.

3.Grieved by the order rejecting the representation the

respondent No. 1 preferred W. P. No. 1268 (S/B) of 2008

before the High Court contending, inter alia, that he was

3

Page 4 entitled to be given retrospective seniority with effect

from the date when the vacancy had arisen. The stand

and stance put forth by him was opposed by the State and

its functionaries by filing a counter affidavit that as per

Rule 21 of 1990 rules the respondent’s seniority had been

correctly fixed from the date of promotion but not from

the date when the vacancy arose. The 1

st

respondent

brought to the notice of the High Court that ten persons

had been conferred seniority with retrospective effect and

he had been discriminated. The High Court placing

reliance on a three-Judge Bench decision in Keshav

Chandra Joshi and Others v. Union of India and

Others

1

and after reproducing paragraph 24 of the said

Judgment expressed the opinion that the principle laid

down therein was binding and on that rationale

distinguished the decision in Nirmal Chandra Sinha v.

Union of India

2

. The High Court further proceeded to

state that the service rules itself empower the

Government to decide the seniority from the date of

vacancy and when ten promotees had been accorded

seniority relating back to the date of arising of vacancy,

1

1992 Supp (1) SCC 272

2

(2009) 14 SCC 29

4

Page 5 denial of the similar benefit to the petitioner by adopting a

different criteria amounted to hostile discrimination

inviting the frown of Article 14 of the Constitution. Being

of this view, the Division Bench of the High Court quashed

the impugned order dated 2.1.2008 and directed the

respondents therein to consider the case of the petitioner

and pass a fresh order in accordance with the verdict

given by it. The penetrability of the aforesaid order is

called in question by the State of U.P and its functionaries

in this appeal by way of special leave.

4.It is submitted by Mr. P. N. Misra, learned senior

counsel appearing for the appellant that the High Court

has flawed by placing reliance on the decision rendered in

Keshav Chandra Joshi (supra), as the same was

delivered in a different context and that apart the ratio

that has been culled out by the High court from the said

pronouncement is not the correct one. The learned senior

counsel has criticized the reasoning that when the service

rule itself empowers the Government to decide the

seniority from the year of vacancy, the Government is not

justified in deciding the seniority of the 1

st

respondent

5

Page 6 from the date of promotion to the post of Reader. It is his

further submission that the High Court has committed a

grave factual error by opining that under Rule 21 of the

1990 rules when seniority was accorded to 10 persons

form the date of vacancy, non-granting of the similar

benefit to the respondent did tantamount to hostile

discrimination, though it had clearly been brought on

record that seniority of all the promoted candidates was

fixed from the date of promotion and not from the

respective dates when the vacancies had arisen.

5.Mr. Aseem Chandra, learned counsel appearing for

the contesting respondent No. 1, per contra, urged that

the High Court has properly applied the principle stated in

Keshav Chandra Joshi (supra) and same being a three-

Judge Bench decision has been aptly followed and, hence,

the analysis made by the High court cannot be found fault

with. Learned counsel would submit as the department

had not filled up the promotional posts, the respondent

was constrained to approach the High Court and on the

basis of the direction issued by the High court when the

posts had been filled up, it was incumbent on the

6

Page 7 authorities to reckon the seniority from the date when the

vacancy had occurred. It is propounded by him that the

language of Rule 21 of the 1990 rules confers

discretionary power on the State Government and in the

case at hand the authorities in an inequitable manner

have failed to exercise the said power and, therefore, the

High Court is absolutely justified in issuing directions for

fixation of seniority with retrospective effect and,

therefore, the order passed by it is absolutely

impregnable.

6. At the very outset, we think it appropriate to deal

with the facet of hostile discrimination. The High Court, as

is manifest, has opined that ten promotees have been

accorded seniority relating back to the date when the

vacancies arose. Reference has been made to Rule 20. It

is worthy to note that an additional affidavit has been filed

on behalf of the appellants clarifying the position that ten

incumbents to whom the benefit of retrospective seniority

was extended, they were selected under Rule 15 of Uttar

Pradesh State Medical College Teacher Service (Second

Amendment) Rules, 2005. The said amended rules were

7

Page 8 brought into force on 12.5.2005 to amend the Uttar

Pradesh State Medical Colleges Teachers Service Rules,

1990. Rule 15 of original rules dealt with procedure for

recruitment by promotion. The amended Rule 15 of 2005

provides the procedure for recruitment by personal

promotion. Rule 20 of the original rules dealt with

seniority and it has been amended and in the present

incarnation the said Rule reads as follows: -

“20. Seniority – The seniority of persons

substantively appointed in any category of

posts in the service shall be determined in

accordance with the Uttar Pradesh Government

Servants Seniority Rules, 1991, as amended

from time to time.

Provided that a person appointed to a post

except the post of Associate Professor or

Professor on the recommendation of the

Commission for which the requisition had been

sent to the Commission before the

commencement of the Uttar Pradesh State

Medical colleges Teacher Service (Second

Amendment) Rules, 2005 shall be entitled to

seniority from the date of his appointment

notwithstanding the fact that a teacher has

been given personal promotion to the same

post under rule 15 in the same recruitment

year.”

Thus, on a plain reading of Rule 20 it is perceptible

that certain categories of incumbents are entitled to

seniority from the date of their appointment

8

Page 9 notwithstanding the fact that they have been conferred

personal promotion to the same post under Rule 15 in the

same recruitment year. It is evident that benefit of

seniority has been given to the incumbents who are

governed by a different set of rules altogether. The High

Court, as we notice, has referred to Rule 21 of 1990 rules

which governs the case of the respondent No. 1. The said

Rule clearly stipulates that if an order of appointment

specifies a particular back date with effect from which a

person is substantively appointed then only that date will

be deemed to be the date of the order of substantive

appointment. From the narration of the aforesaid facts, it

is demonstrable that respondent is governed by different

set of rules and the promotions that have been given to

other category of teachers are under separate set of rules.

When the seniority is governed by two separate set of

rules, it is inconceivable that one can claim seniority on

the basis of the rule relating to determination of seniority

enshrined in the other rules. The respondent No. 1 is

bound to base his case under Rule 21 of the 1990 rules by

which he is governed. Thus analysed, we find that the

9

Page 10 High Court has misdirected itself by recording the finding

that there has been hostile discrimination. The question

of hostile discrimination would have arisen had the State

Government extended the benefit under Rule 21 of the

1990 rules to similarly placed persons governed by the

same Rules. That being not the position we are afraid that

the view expressed by the High Court on that score is not

sustainable.

7.In this context, it is seemly to state that the names of

candidates selected by the Selection Committee in its

meeting held on 19.5.2005 were sent to the Commission.

Be it noted, six candidates, namely, Dr Hari Shanker

Pandey, Dr. Jai Ram Verma, Dr. S.K. Arya, Dr. V.P.

Upadhyaya, Dr. Lal Bahadur Singh and Dr. Ashok Kumar

Srivastava were found fit for promotion and none of them

was given retrospective seniority from the date when the

vacancy arose. The High Court has placed reliance on the

recommendation of the Public Service Commission which

was a reply to the query dated 4.6.2007. The commission

by letter dated 10.8.2007 had stated that

recommendation has been made for promoting Dr. Ashok

1

Page 11 Kumar Srivastava on the post of Reader of Ayurvedic and

Unani Colleges w.e.f. the date of vacancy created on

account of the superannuation of Dr. Hari Shanker Pandey

on 31.7.2001. It is condign to note here that the

commission in his clarificatory recommendation had

amended its letter dated 2.7.2007. It is also perceivable

that the language used in the communication by the

Commission is not free from ambiguity. That apart, the

discretion, if any, rests with the Government. Be that as it

may, the recommendations of the commission cannot be

treated to be binding on the State Government. (See

Jatinder Kumar and Others v. State of Punjab

3

.)

Thus, it is perceptible that all the incumbents promoted

along with the respondent No. 1 were given seniority from

the date of promotion and not from the date when the

vacancies arose. Therefore, the factum of arbitrary

discrimination does not arise and accordingly we are

unable to concur with the view of the High Court.

3

(1985) 1 SCC 122

1

Page 12 8.Presently, we shall advert to the rule position. The

relevant part of Rule 21 of the 1990 rules by which the 1

st

respondent is governed, is reproduced below:-

“21.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 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

18 :

Provided also 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.”

9.On a studied scrutiny of the aforesaid Rule, it is vivid

that the seniority of the candidates is to be determined

1

Page 13 from the date of order of substantive appointment. The

proviso carves out an exception by stipulating 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 order of substantive

appointment otherwise it would be the date of the issue of

the order. The second proviso clarifies that the seniority

will be determined when more than one orders of

appointment are issued in respect of any one selection.

From the aforesaid, it is luminous that unless otherwise

stipulated in the letter of appointment the seniority has to

be computed from the date of appointment to the post. In

the case at hand, nothing has been stipulated in the letter

of appointment. The High Court while granting

retrospective seniority with consequential benefits has

placed reliance on the principle stated in Keshav

Chandra Joshi (supra). In the said case, controversy

related to fixation of seniority between direct recruits and

the promotees. A three-Judge Bench took note of the plea

which was to the effect that promotees should be

declared to have been regularly appointed from the

1

Page 14 respective dates of their initial promotion as Assistant

Conservators of Forest with all consequential benefits. To

substantiate the said plea it was urged that though the

promotees were appointed on ad hoc basis due to non-

availability of direct recruits to the vacant posts of

Assistant Conservators of Forest, yet they were continuing

for well over 5 to 12 years discharging the same duties,

drawing the same scale of pay without any reversion and,

therefore, the posts held by them were not fortuitous, nor

stop gap. In this backdrop it was contended that the

entire continuous length of service from the dates of their

initial promotion should be counted towards their

seniority. In opposition, it was urged that the

appointment of the promotees admittedly being ad hoc,

they had no right to the posts and hence, their seniority

could be counted only from the dates of their substantive

appointment. The Court after scanning the anatomy of

relevant rules opined that in order to become a member

of the service he/they must satisfy two conditions,

namely, the appointment must be in substantive capacity

and the appointment has to be to the post in the service

1

Page 15 according to rules and within the quota to a substantive

vacancy. The learned Judges observed that there exists a

marked distinction between appointment in a substantive

capacity and appointment to the substantive post.

Therefore, the membership to the service must be

preceded by an order of appointment to the post validly

made by the Governor. Then only he/they become

member/members of the service. The Court further

stated that any other construction would be violation of

the Rules. After so expressing, the Court posed two

questions :-

“When promotees become members of the

cadre of Assistant Conservators in

accordance with the rules, and whether the

entire length of service from the date of

initial appointments should be counted

towards their seniority.”

Thereafter, analyzing the entire gamut of case law, opined

that employees appointed purely on ad hoc or officiating

basis due to administrative exigencies, even though

continued for a along spell, do not become the members

of the service unless the Governor appoints them in

accordance with the rules, and so they are not entitled to

1

Page 16 count the entire length of their continuous officiating or

fortuitous service towards their seniority. Eventually, in

paragraph 24 which has been reproduced by the High

Court in entirety in the impugned order to build the edifice

of its reasoning, in essence, it has been laid down thus: -

“It is notorious that confirmation of an

employee in a substantive post would take

place long years after the retirement. An

employee is entitled to be considered for

promotion on regular basis to a higher post if

he/she is an approved probationer in the

substantive lower post. An officer appointed

by promotion in accordance with Rules and

within quota and on declaration of probation

is entitled to reckon his seniority from the

date of promotion and the entire length of

service, though initially temporary, shall be

counted for seniority. Ad hoc or fortuitous

appointments on a temporary or stop gap

basis cannot be taken into account for the

purpose of seniority, even if the appointee

was subsequently qualified to hold the post

on a regular basis. To give benefit of such

service would be contrary to equality

enshrined in Article 14 read with Article 16(1)

of the Constitution as unequals would be

treated as equals. When promotion is outside

the quota, the seniority would be reckoned

from the date of the vacancy within the

quota, rendering the previous service

fortuitous. The previous promotion would be

regular only from the date of the vacancy

within the quota and seniority shall be

counted from that date and not from the date

of his earlier promotion or subsequent

confirmation.”

1

Page 17 In the ultimate conclusion the learned Judges ruled as

follows:-

“Accordingly we have no hesitation to hold

that the promotees have admittedly been

appointed on ad hoc basis as a stop gap

arrangement, though in substantive posts, and

till the regular recruits are appointed in

accordance with the rules. Their appointments

are de hors the rules and until they are

appointed by the Governor according to rules,

they do not become the members of the

service in a substantive capacity. Continuous

length of ad hoc service from the date of initial

appointment cannot be counted towards

seniority.”

10.From the aforesaid, it is clear as day that what is

meant by reckoning of seniority from the date of vacancy

in the context of the facts of the said judgment has been

wholly misunderstood by the High Court. In the case of

Keshav Chandra Joshi (supra), the controversy that

arose pertained to the seniority between direct recruits

and promotees. The Court opined that when promotion is

given beyond the quota of the promotees, the seniority

has to be reckoned from the date of vacancy arising

within the quota meant for the promotees. The Court

further observed that the previous promotion would be

regular only from the date of vacancy within the quota

1

Page 18 and the seniority shall be counted only from that date and

not from date of earlier promotion or subsequent

confirmation. The factual matrix, the relevant rules, the

concepts of direct recruit quota and the promotee quota

and the fortuitous appointment and the principle stated

therein have nothing to do with grant of retrospective

seniority in the context of the present case. Thus, we

have no scintilla of doubt that the High Court has

erroneously applied the ratio laid down in Keshav

Chandra Joshi (supra).

11.The thrust of the matter is how the seniority is to be

determined in such circumstances. In Union of India v.

S.S. Uppal and another,

4

it has been opined that the

seniority of a person is to be determined according to the

seniority rule applicable on the date of appointment. It

has also been observed that weightage in seniority cannot

be given retrospective effect unless it is specifically

provided in the rule in force at the material time.

12.In State of Karnataka and others v. C. Lalitha

5

it

has been observed that it is well settled that seniority

4

(1996) 2 SCC 168

5

(2006) 2 SCC 747

1

Page 19 should be governed by rules and a person should not be

allowed to derive any undue advantage over other

employees, for concept of justice demands that one

should get what is due to him or her as per law.

13.In State of Uttaranchal and another v. Dinesh

Kumar Sharma

6

it has been clearly stated that seniority

has to be decided on the basis of rules in force on the

date of appointment and no retrospective promotion or

seniority can be granted from a date when an employee

has not even been born in the cadre.

14.In Nirmal Chandra Singh (supra) it has been ruled

that promotion takes effect from the date of being

granted and not from the date of occurrence of vacancy or

creation of the post. It has also been laid down therein

that it is settled in law that date of occurrence of vacancy

is not relevant for the determination of seniority.

15. Learned senior counsel for the appellants has drawn

inspiration from the recent authority in Pawan Pratap

Singh and others v. Reevan Singh and others,

7

6

(2007) 1 SCC 683

7

(2011) 3 SCC 267

1

Page 20 where the Court after referring to earlier authorities in the

field has culled out certain principles out of which the

following being the relevant are reproduced below:

“(ii) Inter se seniority in a particular service

has to be determined as per the service rules.

The date of entry in a particular service or the

date of substantive appointment is the safest

criterion for fixing seniority inter se between

one officer or the other or between one group

of officers and the other recruited from

different sources. Any departure therefrom in

the statutory rules, executive instructions or

otherwise must be consistent with the

requirements of Articles 14 and 16 of the

Constitution.

xxx xxx xxx

(iv) The seniority cannot be reckoned from

the date of occurrence of the vacancy and

cannot be given retrospectively unless it is so

expressly provided by the relevant service

rules. It is so because seniority cannot be given

on retrospective basis when an employee has

not even been borne in the cadre and by doing

so it may adversely affect the employees who

have been appointed validly in the meantime.”

16.In view of the aforesaid enunciation of law, the

irresistible conclusion is that the claim of the first

respondent for conferment of retrospective seniority

is absolutely untenable and the High Court has fallen

into error by granting him the said benefit and

2

Page 21 accordingly the impugned order deserves to be

lancinated and we so do.

17.Consequently, the appeal is allowed and the order

passed by the High Court is set aside. The parties

shall bear their respective costs.

…………………………… .J.

[Anil R. Dave]

….………………………….J.

[Dipak Misra]

New Delhi;

August 21, 2013.

2