HIGH COURT OF ANDHRA PRADESH

* * * *

WRIT PETITION No. 4962 of 2014

Between:

The Government of Andhra Pradesh,

Rep.by its Principal Secretary,

School Education Department Secretariat,

Hyderabad and 3 others

.....PETITIONERS

AND

K. Satyanarayana and 5 others

.....RESPONDENTS

DATE OF JUDGMENT PRONOUNCED: 24.06.2025

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

_______________________

CHALLA GUNARANJAN, J

RNT, J & CGR, J

WP No. 4962 of 2014

2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN

+ WRIT PETITION No. 4962 of 2014

% 24.06.2025

Between:

The Government of Andhra Pradesh,

Rep.by its Principal Secretary,

School Education Department Secretariat,

Hyderabad and 3 others

.....PETITIONERS

AND

K. Satyanarayana and 5 others

.....RESPONDENTS

! Counsel for the Petitioners : Sri K. Ramalingeswara Rao

GP for Services-II

Counsel for the Respondents : Sri P. Veerabhadra Reddy

< Gist :

> Head Note:

? Cases Referred:

1. (2008) 7 SCC 728

2. 2011 SCC OnLine Del 574

3. (2008) 2 SCC (L&S) 586

4. (1998) 5 SCC 246

5. 2025 SCC OnLine AP 1787

6. (2000) 8 SCC 182

7. 2023 SCC OnLine Mad 7726

RNT, J & CGR, J

WP No. 4962 of 2014

3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON’BL SRI JUSTICE CHALLA GUNARANJAN

WRIT PETITION No. 4962 of 2014

JUDGMENT: (per Hon’ble Sri Justice Ravi Nath Tilhari)

Heard Sri K. Ramalingeswara Rao, learned Governmen t Pleader for

Services-II, for the petitioners and Sri P. Veerabhadra Reddy, learned counsel

for the respondents.

2. Respondents No.1 to 5 are the applicants in O.A.No.2069 of 2011

before the Andhra Pradesh Administrative Tribunal, Hyderabad (in short ‘the

Tribunal’). They would be referred to as the ‘applicants’. The petitioners herein

were the respondents No.1 to 4 in the O.A. and would be referred to as the

‘petitioners’.

3. The applicants had applied for the posts of School Assistant under

DSC-2001. They were initially appointed to the post of School Assistant as per

their merit in the selections. Some of the selected candidates were appointed

in January, 2002. Subsequently, the Government issued G.O.Ms.No.76,

Education Department, dated 23.09.2002, directing the District Educational

Officers (DEOs) to recast the selection list of DSC-2001 as per the judgment of

the Tribunal in O.A.No.562 of 2002 and batch dated 22.07.2002. The DEOs

had recasted the selection list, called the applicants for counseling in October,

2002 and issued posting Orders in October, 2002 and they joined as School

Assistants in the same month, and since then, they had been working in those

posts. The applicants could not be appointed along with those selectees who

RNT, J & CGR, J

WP No. 4962 of 2014

4

were appointed and joined in January, 2002 due to mis-interpretation of the

provisions of the Presidential Order and finally, pursuant to the Order of the

Tribunal in O.A.No.562 of 2002 they were given appointments in October, 2002.

The applicants, thus, due to some irregularity in selection, could not be

appointed in January, 2002 along with their batch-mates. They made

representations to fix up their seniority on par with those who were appointed

in January, 2002 as per their merit and ranking in the selection list, but no

action was taken and at no point of time, seniority list of Teachers selected in

DSC-2001 was communicated to the applicants. Later on, for effecting

promotions to the next cadre, the petitioners were taking the date of joining of

the applicants in October, 2002 as criteria for fixing up the seniority ignoring

their merit and ranking in the selection list of DSC-2001. The applicants filed

O.A.No.2069 of 2011. The Tribunal initially passed interim Order, directing the

petitioners to dispose of the applicants’ representation and also to prepare

seniority list in accordance with Rule 33 (b) of the Andhra Pradesh State and

Subordinate Service Rules, 1996 (in short ‘the Rules 1996’). The petitioners

rejected the request of the applicants vide proceedings in Rc.No.164-B5/2011,

dated 14.03.2012 based on the instructions of the 3

rd

petitioner in

Rc.No.3741/D1-4/2011, dated 28.12.2011 and by the same proceedings they

also communicated the seniority list in Rc.No.164-B5/2011, dated 14.03.2012.

The applicants’ seniority was fixed as per the date of their joining in October,

2002. The applicants amended the O.A. and also questioned the said seniority

list and the Order of rejection.

RNT, J & CGR, J

WP No. 4962 of 2014

5

4. The petitioners filed counter in O.A. and inter alia raised the plea that

pursuant to the Orders of the Tribunal in O.A.No.562 of 2002 and batch, as per

Government Memo No.42005/Services/D/2002-1, GA (Ser -D) Department,

dated 28.08.2002 and 18.09.2002, the posting orders were issued to the

candidates including the present applicants as per their merit ranking in the

selection list under DSC-2001.

5. The petitioners also raised the plea in their counter in O.A. that the

issue relating to unification of the service rules issued in G.O.Ms.No.505, dated

16.11.1998 and G.O.Ms.No.538, dated 20.11.1998 was subject matter of SLP

(c) No.22597-612/2004 and CA.No.4878/2009 pending before the Hon’ble

Supreme Court of India, in which the Order was passed maintaining

status quo

from 20.07.2009. Hence, the claim of the applicants for revival of seniority will

only be examined after the receipt of judgment of the Hon’ble Supreme Court.

6. The Tribunal framed the points for determination as under:

“(i) Whether the seniority list vide Rc.No.164-B5/2011, dated

14.03.2012, issued by the 1

st

respondent is sustainable in law and on facts?

(ii) Whether the applicants are entitled for notional seniority as per their

merit and ranking in DSC-2001 selections on par with those who are appointed

as School Assistants in January, 2002 with all consequential benefits? And

(iii) to what relief?”

7. The Tribunal allowed the O.A. by Judgment and Or der dated

21.03.2013. The seniority list dated 14.03.2012 was set aside and the direction

was issued to prepare fresh seniority list by following Rule 33 (b) of the Rules

RNT, J & CGR, J

WP No. 4962 of 2014

6

1996 and to communicate the same to the applicants and other Teachers for

their objections, if any, and finalize the same and then effect the promotions to

the next cadre. The operative part of the judgment reads as under:

“9. POINT No.(iii): For the reasons stated under Points (i) and (ii), the

O.A. is allowed setting aside the seniority list vide Proceedings Rc.No.164-

B5/2011, dated 14.03.2012 issued by the 1

st

respondent. The respondents are

directed to prepare fresh seniority list of Teachers selected under DSC-2001 by

following Proviso to Rule 33 (b) of A. P. State and Subordinate Service Rules

and then communicate the same to the applicants and other Teachers for their

objections, if any, receive their objections; finalise the same and then effect

promotions to the next cadres. The respondents are directed to give notional

seniority to the applicants in the cadre of School Assistants as per their merit

and ranking in the selection list from January, 2002 on par with those who are

appointed in that month as School assistants under DSC-2001, with all

consequential benefits like seniority, increments, etc and the monetary benefit

from the date of their actual appointment as School Assistants in October, 2002.

Necessary orders in this regard shall be passed within a period of eight weeks

from the date of receipt of a copy of this order.”

8. The Tribunal held that the applicants could not be appointed though

they were meritorious because of irregular selection made due to mis-

interpretation of the Presidential Order. In O.A.No.562 of 2001 and batch the

Tribunal allowed the O.A. on 22.07.2002, directing the petitioners to directly fill

up the first 20% vacancies as per the merit of the candidates both local and

non-local by following reservation. Thereafter, the Government issued

G.O.Ms.No.76, dated 23.09.2002, directing the DEOs to redraw the selection

list. Accordingly, the selection list was redrawn in which the applicants became

eligible for appointment as School Assistants and they were appointed in

RNT, J & CGR, J

WP No. 4962 of 2014

7

October 2002. In preparation of the seniority list, the respondents took the

date of joining of the applicants into service in October 2002 as a criteria,

ignoring the Rule 33 (b) of the Rules 1996. The Tribunal further held that the

applicants though secured higher rank in selections, they became juniors in the

cadre of School Assistants as less meritorious candidates were placed above

them in the seniority list. To reach its conclusion in favour of the applicants,

the Tribunal placed reliance in

Balwant Singh Narwal v. State of Haryana

1

and also considered the case of

Government of NCT of Delhi v. Dr. Pawan

Kumar N. Mali

2

.

9. Learned counsel for the petitioners submitted that the Tribunal failed

to appreciate that the unification of service rules issued in G.O.Ms.No.505,

dated 16.11.1998 and G.O.Ms.No.538, dated 20.11.1998 were subject matter of

contest in the Hon’ble Supreme Court in SLP No.22597-612/2004 and CA

No.4878-4901/2009 in which direction was given for maintaining

status quo.

He submitted that in view thereof, the Tribunal acted illegally in allowing O.A.

and issuing the directions as contained in its impugned judgment.

10. Learned counsel for the petitioner further submitted that the

seniority to the applicants could not be given from any date prior to their date

of appointment in October 2002 as they were not born in the cadre before the

date of their appointments.

1

(2008) 7 SCC 728

2

2011 SCC OnLine Del 574

RNT, J & CGR, J

WP No. 4962 of 2014

8

11. Learned counsel for the petitioners further submitted that the

respondents after lapse of 10 years, approached the Tribunal and as such, the

O.A. deserved to be dismissed on the ground of delay and laches.

12. Learned counsel for the petitioners further submitted that the

directions as given by the Tribunal would adversely affect the rights of those

persons who were unrepresented and not party before the Tribunal.

13. Learned counsel for the claimants supported the Order of the

Tribunal. He submitted that the applicants were selected in same selection

DSC-2001, but it was due to the irregularities in such selection that the

applicants though meritorious and should have been given appointment initially,

were not selected and appointed and it was only after the Order passed by the

Tribunal in O.A.No.2069 of 2011 and the Government Order to recast the

selection list and as per the recast selection list, the applicants being

meritorious had been given appointment. But in the meantime, some time was

taken in the litigation and because of that the applicants could not be made to

suffer. The applicants being the selectees of the same DSC-2001 and being

meritorious, under the circumstances could not be denied their seniority or the

placement at the appropriate place at par with the other selectees of DSC-2001,

selected along with the applicants. He submitted that there is no illegality in

the Order of the Tribunal which has the support of law in the cases of

Balwant

Singh Narwal

(supra) and Dr. Pawan Kumar N. Mali (supra).

14. Learned counsel for the applicants further submitted that the

contention with respect to the interim order passed by the Hon’ble Apex Court

RNT, J & CGR, J

WP No. 4962 of 2014

9

in the SLP.No.22597-612/2004 and CA No.4878-4901/2009 has nothing to do

with the selection of DSC-2001. He submitted that the Tribunal considered the

said aspect and clearly held that the said litigation has nothing to do with the

seniority being claimed by the applicants of DSC-2001. He has further refuted

the other submissions relating to delay and laches in approaching the Tribunal

as also of adversely affecting the allegedly unrepresented parties, as without

any substance.

15. We have considered the aforesaid submissions and perused the

material on record.

16. The point that arises for our consideration is,

“Whether the impugned judgment of the Tribunal is legal or it

calls for interference.?

17. Firstly, so far as the contention of the petitioners’ counsel with

respect to the Order of

Status quo by the Hon’ble Apex Court in the SLP

No.22597-612/2004 and CA No.4878-4901/2009 is concerned, on our specific

query, learned counsel for the petitioners submitted that the said matter

pertained to DSC-1998 and on the subject of unification of service rules in

G.O.Ms.No.505, dated 16.11.1998 and G.O.Ms.No.538, dated 20.11.1998. The

Tribunal in para-8 (f) observed that “

…the said litigation has nothing to do with

the seniority now claimed by the applicants

…”. The seniority in the present

case, is admittedly to be considered as per Rule 33 (b) of the Rules 1996, which

learned counsel for the petitioners submitted during arguments to be different

from G.O.Ms.No.505, dated 16.11.1998 and G.O.Ms.No.538, dated 20.11.1998.

RNT, J & CGR, J

WP No. 4962 of 2014

10

Learned counsel for the petitioners could not demonstrate as to how the

present matter was connected or covered by the SLP No.22597-612/2004 and

CA No.4878-4901/2009.

18. Besides, CA.No.4886-4901 of 2009 was dismissed by the Hon’ble

Apex Court on 30.09.2015 with observations and directions, which Order reads

as under:

“The application for amendment of cause-title and the application for

impleadment are allowed as prayed for.

Heard learned counsel for the rival parties.

We see no reason to interfere with the well-considered decision in

exercise of our jurisdiction under Article 136 of the Constitution of India.

While dismissing the appeals and the special leave petition, we deem it

appropriate to make the following observations/directions.

Since the recruitment to the local authorities, the Panchayat Samitis and

the Zilla Parishads are said to have been done in compliance with para 8 of the

Presidential Order, the State Government is at liberty to send a proposal to the

Union of India obtaining the approval of the President of India to integrate the

teachers of the Panchayat Samitis and the Zilla Parishads, who are also

government servants with the existing local cadres of teachers. As and when

such proposal is sent to the Union of India, the same shall be considered at any

early date.

In the meantime, it would be open to the State Government to frame

Rules to make suitable promotional avenues for teachers and other employees

of the Panchayat Samitis and the Zilla Parishads.”

19. It could not be argued by the learned counsel for the petitioners

that the judgment of the Tribunal cannot stand in view of the directions and

observations made in CA Nos.4878-4885 of 2009 by the Hon’ble Apex Court.

RNT, J & CGR, J

WP No. 4962 of 2014

11

20. Consequently, we find no force in the aforesaid submissions of the

petitioners’ counsel to challenge the judgment of the Tribunal.

21. So far as the submission of the petitioners’ counsel that the O.A. was

filed belatedly which suffered from delay and laches is concerned, firstly, any

such plea on the point of laches appears not to have been taken before the

Tribunal. The only plea which was taken as per para-9 of the counter affidavit

filed in the O.A., was that the applicants submitted the representation after a

lapse of 7 years. Additionally, and besides that, the seniority list was prepared

on 14.03.2012 and the petitioners’ representations were rejected on

consideration pursuant to the interim order of the Tribunal in the same

O.A.No.2069 of 2011, on 14.03.2012 during the pendency of the O.A. So, by

amendment the Order of rejection and the seniority list were also challenged.

Consequently, on this aspect, we are of the view that there is no question of

any delay or laches in challenging the seniority list or order of the rejection of

the petitioners’ claim for seniority. Further, it is not the case of the petitioners

that any seniority list had been prepared prior to 14.03.2012. Whereas, the

case of the applicants was that at the time of making promotion to the next

cadre post they represented to prepare seniority list and then to effect the

promotions. Being aggrieved from such action of the petitioners, as stated in

the O.A., the applicants approached the Tribunal for direction as prayed in the

O.A. at a time when they felt aggrieved from the action of the petitioners in

proceeding for promotion without preparing seniority list. We are of the view

RNT, J & CGR, J

WP No. 4962 of 2014

12

that the submission of the petitioners’ counsel that the O.A. suffered from

laches and delay holds no ground. Such submission is rejected.

22. Now coming to the merit of the Order of the Tribunal, we are of the

view that the applicants are the selectees of the same selection DSC-2001.

Initially, they were denied selection and appointment, for the reason that the

selection was erroneous by not applying correctly the Presidential Order with

respect to locals and non-locals, and when the exercise was done correctly,

again, pursuant to the Order of the Tribunal in O.A.No.562 of 2002, dated

22.07.2002, the applicants got selected and appointed in October 2002,

whereas some of the selectees of the same selection had already been given

appointment in January, 2002. The applicants were entitled for being placed in

the seniority list, as per their merit, at par with the other selectees in the same

selection who were given appointments in January 2002. Rule 33 (b) of the

Rules 1996 which is reproduced hereinafter, also provides for the same and has

been correctly considered by the Tribunal and O.A. allowed as per the law and

in the cases of

Balwant Singh Narwal (supra) and Dr. Pawan Kumar N.

Mali

(supra).

23. Rule 33 (b) of the Andhra Pradesh State and Su bordinate Service

Rules, 1996 relevant for the present case reads as under:

“33. SENIORITY:

(b) The appointing authority may, at the time of passing an order

appointing two or more persons simultaneously to a service, fix either for the

purpose of satisfying the rule of reservation of appointments or for any other

reason the order of preference among them, and where such order has been

fixed, seniority shall be determined in accordance with it.

RNT, J & CGR, J

WP No. 4962 of 2014

13

Provided further that the order of merit or order of preference indicated

in a list of selected candidates prepared by the Public Service Commission or

other selecting authority, shall not be disturbed inter-se with reference to the

candidates position in such list or panel while determining the seniority in

accordance with this rule and notional dates of commencement of probation to

the extent necessary, shall be assigned to the persons concerned, with reference

to the order of merit or order of preference assigned to them in the said list.”

24. Rule 33 (b) of the Service Rules 1996 thus provides that the

appointing authority may at any time of passing an order appointing two or

more persons simultaneously to a service, fix either for the purpose of

satisfying the rule of reservation of appointments or for any other reason the

order of preference among them, and where such order has been fixed,

seniority shall be determined in accordance with it. Its proviso provided that

the order of merit or order of preference indicated in a list of selected

candidates prepared by the Public Service Commission or other selecting

authority, shall not be disturbed

inter se with reference to the candidates

position in such list or panel while determining the seniority in accordance with

this rule and notional dates of commencement of probation to the extent

necessary shall be assigned to the persons concerned with reference to the

order of merit or order of preference assigned to them in the said list.

25. Therefore, as per Rule 33 (b) of the Service Rules 1996, the

respondents/applicants were entitled to be given the seniority in the order of

merit or preference as per the merit list of appointees, all being selectees of the

same DSC-2001, irrespective of the date of the applicants’ appointment i.e.,

though given appointment in October 2002, for no fault on their part, but

RNT, J & CGR, J

WP No. 4962 of 2014

14

because of irregularity committed in selection which was corrected under the

Order of the Tribunal. They were entitled for the seniority being given with

effect from January, 2002, at par their counter parts.

26. In Balwant Singh Narwal v. State of Haryana

3

the Haryana

Public Service Commission, the third respondent therein (in short “the

Commission”) issued an advertisement in January 1992 inviting applications for

18 posts of temporary Principals in higher secondar y schools. The

advertisement made it clear that the number of posts advertised was subject to

variations to any extent. On 01.06.1993, the State Education Department made

a fresh requisition to the Commission in regard to additional vacancies, thereby

increasing the posts to be filled to 37. The respondents 4 to 16 therein were

applicants against the said advertisement and underwent the process of

selection. The Commission declared the merit list of 30 selected candidates on

30.09.1993, published on 01.10.1993, which included respondents 4 to 16.

However, before the State Government could make appointment in terms of the

said list, a non-selected candidate filed WP No. 12700 of 1993 contending that

only 18 posts were notified and the Commission coul d not make

recommendations for selection of 30 candidates. The writ petition was allowed

by the High Court on 04.04.1994 and the recommendations in excess of the 18

vacancies were quashed on the ground that the Commission could not make

recommendations beyond the number of posts advertised. The appeal was

dismissed by the Division Bench of the High Court. In the meanwhile, in view

3

(2008) 2 SCC (L&S) 586

RNT, J & CGR, J

WP No. 4962 of 2014

15

of the Orders of the learned Single Judge, the State Government appointed only

16 candidates from the list of 30, by Order dated 02.06.1994, as against 18

permitted by the High Court, not for want of vacancies but on account of some

technical difficulty in appointing other two candidates. The respondents 4 to 16

were denied appointments, though their names were in the selected merit list

of 30 candidates. The Order of the Division Bench of the High Court was

challenged before the Hon’ble Apex Court, which was disposed of, reversing the

decision of the High Court and dismissing the writ petition, also holding that the

recommendations made by the Commission were in accordance with law, and

therefore, all the 30 names recommended by the Commission were entitled to

be appointed. Pursuant thereto, the State Government by Order dated

26.05.2000 appointed respondents 4 to 16 as Principals. They also requested

for fixing their seniority with reference to the merit list vide various

representations that they should be given seniority above those who were

appointed against subsequent vacancies. The State Government considered and

accepted their request and fixed their position immediately after the 16

candidates who were appointed from the same merit list on 02.06.1994, and

they were shown above the appellants before the Hon’ble Apex Court in the

provisional seniority list of Principals HES-II. These appellants before the

Hon’ble Apex Court were the Principals appointed in the meantime pursuant to

subsequent selection for subsequent vacancies.

27. The Hon’ble Apex Court in

Balwant Singh Narwal (supra) observed that the general proposition that selection by the Public Service

RNT, J & CGR, J

WP No. 4962 of 2014

16

Commission is merely recommendatory and does not im ply automatic

appointment and that the appointing authorities should not give notional

seniority without valid reason, from a retrospective date, which would affect the

seniority of those who have already entered service, was not in dispute.

Further, the Hon’ble Apex Court observed on the question in regard to seniority

of the respondents 4 to 16 selected on 01.10.1993 against certain vacancies of

1992-1993 who were not appointed due to litigation, and those who were

selected against subsequent vacancies, that a similar situation, arose

in Surendra Narain Singh v. State of Bihar

4

in which it was held that the

candidates who were selected against earlier vacancies but who could not be

appointed along with others of the same batch due to certain technical

difficulties, when appointed subsequently, would have to be placed above those

who were appointed against subsequent vacancies.

28. Paragraph-9 of

Balwant Singh Narwal (supra) reads as under: “9. There is no dispute about these general principles. But the question

here is in regard to seniority of Respondents 4 to 16 selected on 1-10-1993

against certain vacancies of 1992-1993 who were not appointed due to

litigation, and those who were selected against subsequent vacancies. All others

from the same merit list declared on 1-10-1993 were appointed on 2-6-1994.

Considering a similar situation, this Court, in Surendra Narain Singh v. State

of Bihar [(1998) 5 SCC 246 : 1998 SCC (L&S) 1317] held that candidates

who were selected against earlier vacancies but who could not be appointed

along with others of the same batch due to certain technical difficulties,

when appointed subsequently, will have to be placed above those who were

appointed against subsequent vacancies.”

4

(1998) 5 SCC 246

RNT, J & CGR, J

WP No. 4962 of 2014

17

29. Consequently, following the judgment in Surendra Narain

Singh (supra), the Hon’ble Apex Court in Balwant Singh Narwal (supra),

justified the action of the State Government in giving notional seniority and

placing the respondents 4 to 16 therein immediately below the other 16

candidates who were selected in the common merit list and appointed on

02.06.1994. The retrospective seniority was also given to them from

02.06.1994 when the other selected candidates in the same merit list were

appointed, observing that those should not be denied the benefit of seniority.

30. Recently, the aforesaid aspect of notional seniority along with

selectees/appointees of the same selection was considered by a coordinate

Bench of this Court in

Government of Andhra Pradesh v. Dendukuri

Venkata Narasimha Raju

5

. In the said case, the applicants therein claimed

for grant of seniority and also the other benefits at par with the appointees of

DSC-1989 who were selected and given appointments in the year 1996. The

Tribunal had allowed their claim. The State had filed the writ petition. Those

applicants were also the selectees of DSC-1989. They were meritorious and

their names were in the merit list, but the persons less meritorious were given

appointments. Litigation started and ended in favour of the applicants. Finally,

the applicants were given appointments being selectees in DSC-1989 in the

year 2002 after terminating the services of less meritorious candidates. The

Coordinate Bench of this Court observed and held that those applicants being

selectees of the same DSC-1989 who could not be appointed along with the

5

2025 SCC OnLine AP 1787

RNT, J & CGR, J

WP No. 4962 of 2014

18

other selectees who were given appointments in the year 1996, though

meritorious, but due to litigation, when those applicants were appointed

subsequently in the year 2002 will have to be placed along with the appointees

of 1996 i.e., the selectees of the same selection of DSC-1989, following the law

as laid down in

Surendra Narain Singh (supra), Balwant Singh Narwal

(supra).

31. It is apt to refer paragraphs-34 to 43 of Dendukuri Venkata

Narasimha Raju (supra) as under:

“34. We shall also refer to Pawan Pratap Singh v. Reevan Singh

5

in which

the question was of determination of seniority between two groups of direct

recruits to the posts of Deputy Jailor (Group ‘C’ post), one appointed in 1991

through the selection made by the Uttar Pradesh Subordinate Services Selection

(in short ‘the Selection Commission’) and the other in 1994 by the Uttar

Pradesh Public Service Commission (in short ‘UPPSC’). The Uttar Pradesh

Government Servants Seniority Rules, 1991 (in short ‘1991 Rules’) were made

applicable to all government servants of Uttar Pradesh. Rule 5 of 1991 Rules

provided for seniority where appointments were made by direct recruitment

only and Rule 8 of 1991 Rules provided for determination of seniority where

appointments were made by promotion and direct recruitment. Other Rules,

namely, the Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service

Rules, 1980 (in short ‘1980 Rules’), under which the procedure for direct

recruitment to the post of Deputy Jailor and Assistant Jailor was provided. The

recruitment to the post of Deputy Jailor was by two sources, by direct

recruitment and by promotion. The High Court therein had applied Rule 5 of

1991 Rules for determination of seniority, as the question was relating to the

determination of seniority between two groups of direct recruits to the post of

Deputy Jailor. It was held that since the appointments were to be made to the

post of Deputy Jailor by promotion and also by direct recruitment, Rule 5 was

RNT, J & CGR, J

WP No. 4962 of 2014

19

not applicable, but Rule 8 would apply even if it was a case of determination of

seniority between two groups of direct recruits to the Deputy Jailor.

35. In Pawan Pratap Singh (supra) the issue was not concerned with the

seniority inter se of persons appointed on the result of one selection through

direct recruitment or through direct recruitment and promotion in one selection.

The issue was between the direct recruits of different selections, one appointed

in 1991 and the other appointed in 1994. Hon'ble Justice R. M. Lodha in his

judgment held that Rule 8 (1) in unambiguous terms provided that the seniority

of persons, subject to the provisions of sub-rules (2) and (3), for determination

would be from the date of the order of their substantive appointments. Sub-rules

(2) and (3) were not attracted. Sub-Rule (2) provided that the seniority inter

se of the persons appointed on the result of one selection, (a) through direct

recruitment, shall be the same as it is shown in the merit list prepared by the

Commission or its Committee, as the case may be, whereas sub-rule (3)

provided that where appointments were made both by promotion and direct

recruitment on the result of any one selection the seniority of promotes vis-à-vis

direct recruits shall be determined in a cyclic order (the first being a promote)

so far as may be, in accordance with the quota prescribed for the two sources.

Rule 8 (1) was held applicable to determine the seniority from the date of the

order of a substantive appointment. The Hon'ble Apex Court (per

Hon'ble Justice R. M. Lodha) held that what was relevant was the date of the

order of their substantive appointment and since the substantive appointment of

the 1991 appointees was much prior in point of time, they must rank senior to

the 1994 appointees. The Hon'ble Apex Court further observed that the

appointees of 1991, who were selected and appointed in accordance with the

service rules could not be made juniors to the 1994 appointees, even if it was

assumed that the selection and appointment of the 1994 appointees was for

earlier vacancies. The Hon'ble Apex Court did not accept the contention raised

therein that the seniority shall be determined with respect to the earlier

vacancies. In the said case, the appointees of 1994 were selected against earlier

vacancies, but in the meantime, the selection for the subsequent vacancies took

place, in which the appointees of 1991 were appointed. The Hon'ble Apex

RNT, J & CGR, J

WP No. 4962 of 2014

20

Court held that no retrospective promotion could be granted nor any seniority

be given on retrospective basis from a date when an employee had not even

been borne in the cadre, as by doing so, it must adversely affect the employees

who had been appointed validly in the meantime.

36. In Pawan Pratap Singh (supra), in the concurring judgment,

Hon'ble Justice Aftab Alam, summarized the legal position with regard to the

determination of seniority in service in paragraph-45, which reads as under:

“45. From the above, the legal position with regard to determination of

seniority in service can be summarised as follows:

(i) The effective date of selection has to be understood in the context of the service

rules under which the appointment is made. It may mean the date on which the

process of selection starts with the issuance of advertisement or the factum of

preparation of the select list, as the case may be.

(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.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is

done, it must be based on objective considerations and on a valid classification

and must be traceable to the statutory rules.

(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.”

37. In the concurring judgment, Justice Aftab Alam in para-61 also

observed that in case the seniority between the appellants and the first

respondent therein was to be determined outside the 1991 Rules, one has to go

RNT, J & CGR, J

WP No. 4962 of 2014

21

to the basic principles for determination of seniority, and one cardinal principle

for determination of seniority was that unless provided for in the rules, seniority

could not relate back to a period to the date of the incumbernt's birth in the

service/cadre. It was also observed, in the concurring judgment, that Rule 8 of

1991 Rules was also not applicable to the facts of that case and the issue of

seniority was to be decided on the basis of the basic principles and that there

was no need of attracting Rule 8 of 1991 Rules. Those basic principles were,

firstly, as already mentioned that, seniority cannot relate back to the period

prior to the date of birth in that cadre and the other that the direct recruits

cannot claim appointment from the date of vacancy, before their selection

referring to the judgments in Suraj Parkash Gupta v. State of J&K

6

, N.K.

Chauhan v. State of Gujarat

7

, A. Janardhana v. Union of India

8

and A. N.

Pathak v. Secy. to the Govt.

9

. So, in Pawan Pratap Singh (supra) the ratio laid

down is the same, may be referring to Rule 8 of the Service Rules, 1991, or on

the general principles, independent of the applicability of Rule 8.

38. From the aforesaid judgments, the legal position, is that the 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 of India. Ordinarily, notional seniority may not be granted

from the backdate and if it is done, it must be based on objective considerations

and on a valid classification and must be traceable to the statutory rules.

39. We shall now refer to K. Meghachandra Singh v. Ningam Siro

10

in

which the question was of the seniority between promotees and the direct

recruits in the Manipur Police Service Grade II Officers Cadre and the promotes

who were serving as Inspector of Police, who were granted promotion on the

basis of duly constituted Departmental Promotion Committee (DPC) to MPS

Grade II Cadre on 01.03.2007. The direct recruits were directly recruited vide

the Orders dated 14.08.2007 and 24.11.2007. The appointment and the seniority

RNT, J & CGR, J

WP No. 4962 of 2014

22

was governed by the Manipur Police Service Rule 1965. The contention of the

promotees was that they entered the MPS Grade II Cadre on 01.03.2007,

whereas the direct recruits were appointed subsequently and therefore the

promotee should be regarded as senior to the direct recruits. The contention of

the direct recruits was that the seniority had to be decided in accordance with

the year of the vacancy and not by the fortuitous date on which the appointment

could be finalized for the direct recruits. The High Court found that the

promotees got entered into the cadre in the recruitment 2006-2007, whereas the

direct recruits would stood appointed in the recruitment year 2007-2008, and

therefore, there was no overlap between the promotees and direct recruits as far

as the year of recruitment was concerned. So the principle of rotation quota

between the two streams would not arise under Rule 28 (iii). Accordingly, the

High Court determined that the promotees would rank seniors to the direct

recruits. The Division Bench upheld the conclusion of the learned single Judge

and confirmed the Order, but also held that the seniority for direct recruits could

not be reckoned from a date prior to their appointment. The Hon'ble Apex Court

upheld the judgment of the High Court. It was held that the seniority could not

be given to the employee who was yet to be borne in the cadre. The seniority is

to be reckoned not from the date when vacancy arose but from the date on

which the appointment was made to the post. The Hon'ble Apex Court

approved the judgments in the cases of Jagdish Ch. Patnaik v. State of

Orissa

11

, Suraj Parkash Gupta (supra), and overruled Union of India v. N. R.

Parmar

12

with the caveat that the judgment in K. Meghachandra Singh (supra)

will not affect the inter se seniority already determined, based on N.R.

Parmar (supra) and the same was protected. The judgment in K. Meghachandra

Singh (supra) was held to be applied prospectively, except where seniority was

to be fixed under the relevant rules from the date of vacancy/the date of

advertisement. If the relevant rules provided for determination of seniority from

the date of vacancy or date of advertisement, the seniority would be determined

as per that rule, but otherwise the seniority could not be determined from the

date of vacancy or the date of notification.

RNT, J & CGR, J

WP No. 4962 of 2014

23

40. We are not oblivious that in Hariharan v. Harsh Vardhan Singh

Rao

13

the judgment in K. Meghachandra Singh (supra) has been referred to the

Larger Bench on the following points:

“38. Hence, we pass the following order:

i. We are of the considered view that the following questions need to be decided by

a larger Bench of five Hon'ble Judges:

a. Whether the decision in the case of K. Meghachandra

2

can be said to be a

binding precedent in the light of the law laid down by the Constitution Bench in

the case of Mervyn Coutindo

3

and the law laid down by a Coordinate Bench in

the case of M. Subba Reddy

6

?

b. In absence of specific statutory rules to the contrary, when the ‘rotation of quota’

rule is applicable, whether the seniority of direct recruits who were recruited in

the recruitment process which commenced in the relevant recruitment year but

ended thereafter, can be fixed by following ‘rotation of quota’ by interspacing

them with the direct recruits of the same recruitment year who were promoted

earlier during the same year?

ii. We direct the Registry to place this petition before Hon'ble the Chief Justice of

India for appropriate orders.

iii. The interim relief granted on 13

th

July 2018 stands vacated. Effect shall be given

to the impugned judgment subject to the final outcome of this appeal or

reference, as the case may be. We also clarify that the seniority of promotees

and direct recruits who may be appointed hereafter will be subject to the final

outcome of the decision of this appeal or the decision in reference, as the case

may be. Accordingly, concerned persons shall be informed in writing by the

Income Tax Department.”

41. The present is a case of the applicants for grant of seniority and also the

other benefits at par with the appointees of DSC 1989, who were selected and

given appointment in the year 1996. The respondents 1 to 11 herein (the

applicants) are also the selectees of DSC 1989. They were meritorious and their

names were in the merit list, but the persons less meritorious were given the

appointment. Litigation started and ended in their favour. Finally these

applicants were given the appointment being selectees of DSC 1989 pursuant to

RNT, J & CGR, J

WP No. 4962 of 2014

24

the orders of the High Court, in the year 2002 in regular pay scale, after

terminating the services of those less meritorious candidates. So, the present is

not a case of determination of seniority neither between the direct recruits on

one hand and the promotees on the other hand, nor a case of determination of

seniority between the groups of two direct recruits of different selections in

different years or of different year vacancies. Present is a case of determination

of seniority amongst the selectees and the appointees of the same selection of

DSC 1989.

42. The date of appointment of the applicants is in the year 2002, but the

question is whether their entry in the service is to be considered only from the

date they have been given actual appointment or they are to be considered as

having been borne, may be on notional basis on the date the appointments were

given to the selectees of the same selection, in the year 1996, and these

applicants were denied the appointment on erroneous ground, though they were

meritorious and must have been appointed in the year 1996 itself. After many

round of litigation, as has been mentioned in the writ petition and also in the

O.A. of which reference has been made by the Tribunal on which there is no

dispute, if the appointment had been made as per law, these meritorious

candidates/applicants could not be denied the appointment, along with their

counter parts/the selectees of DSC 1989. Consequently, we are of the view that

to the facts of the present case, the law as laid down by the Hon'ble Apex Court

in the case of Balwant Singh Narwal (supra) and the judgment in Surendra

Narain Singh (supra) is fully applicable on which the Tribunal placed reliance,

in which the Hon'ble Apex Court observed and held that the candidates who

were selected against earlier vacancies but who could not be appointed along

with others of the same batch due to certain technical difficulties, when

appointed subsequently, will have to be placed above those who were appointed

against subsequent vacancies.

43. Consequently, we are of the view that following the law, as laid down

in Surendra Narain Singh (supra) and Balwant Singh Narwal (supra), the

respondents 1 to 11 being the selectees of the same DSC 1989, who could not

be appointed along with other selectees who were given appointment in the year

RNT, J & CGR, J

WP No. 4962 of 2014

25

1996, and these persons could not be given due to no fault on their part and due

to the litigation, when appointed subsequently in the year 2002 will have to be

placed, along with the appointees of 1996 i.e., the selectees of the same

selection of DSC 1989 and so the applicants would also be entitled for the

benefits at par with the appointees of 1996, which has been rightly awarded by

the Tribunal.”

32. In

Sanjay Dhar v. J&K Public Service Commission

6

the main

question was whether the certificate of practice furnished by the appellant

therein, satisfied the requirement of Rule 9 of J&K Civil Service (Judicial)

Recruitment Rules, 1967 and if so, whether the said appellant was wrongfully

denied the appointment in 1992-93 selections. The Hon’ble Apex Court held

that the appellant satisfied the requirement of Rule 9 of the aforesaid Rules and

J&K PSC was not justified in rejecting his application holding him to be

ineligible. The said appellant was also successful having secured third position

in the select list, so he could not have been denied appointment. He was fully

entitled to the relief of his appointment with effect from the date from which

the candidates finding their place in the order of appointments issued pursuant

to the select list prepared by the J&K PSC in the same selection. The Hon’ble

Apex Court also held that the appellant deserved to be assigned notionally a

place in seniority consistently with the Order of merit assigned by the J&K PSC.

It was directed that the said appellant shall be deemed to have been appointed

along with other appointees and assigned a place of seniority consistently with

his placement in the order of merit in the select list.

6

(2000) 8 SCC 182

RNT, J & CGR, J

WP No. 4962 of 2014

26

33. In C. Ovuraj v. Director General of Police

7

where the petitioners

therein were erroneously declared as unfit during the first medical examination,

but during the second medical examination, they were declared to be fit and

since training had already been commenced, the said petitioners had to wait till

2015 for issuance of appointment order. The delay in issuance of the

appointment orders to those writ petitioners was attributable only to the

department and there was no fault on the part of the petitioners. Those

petitioners had filed the petition for fixation of their seniority along with their

batch-mates from the year 2012, as their representation to that effect was

rejected by the concerned department. The Madras High Court set aside the

Order of rejection and directed to notionally fix the seniority to those writ

petitioners from the date on which the candidates lower in merit to the

petitioners were appointed in the year 2012, and also directed that they would

be entitled for notional benefits of such continuous appointment, with further

direction that the period between 2012 and the date of appointment order of

those petitioners shall be taken into consideration for the purpose of seniority

and pensionary benefits.

34. In

Dr. Pawan Kumar N. Mali (supra), the respondents therein

were eligible for the appointment to the post of Medical Officer (Ayurveda) from

the date three other persons were selected along with them and were

appointed, and they filed the petition before the Tribunal for counting that

period for increments and fixation of pay taking that period into consideration,

7

2023 SCC OnLine Mad 7726

RNT, J & CGR, J

WP No. 4962 of 2014

27

as also for seniority. The Tribunal had allowed the petition. The writ petition

filed by the Government of NCT of Delhi, challenging the Order of the Tribunal

was dismissed. The Delhi High Court placing reliance in the case of

Surendra

Narain Singh

(supra) held that when the appointment is delayed, the

candidates could not be allowed to suffer for no fault of theirs and their

seniority would be protected. The respondents in the said case since were

selected with three other Doctors who were appointed, but the respondents

could not be appointed on account of interim order granted in respect of the

services of the doctors who were appointed on contract basis, held that the

respondents on their appointment would be entitled for seniority from the date

they had accepted the offer of appointment along with three other doctors who

were already appointed.

35. We are of the view that to the facts of the present case, the law as

laid down by the Hon’ble Apex Court in the case of Balwant Singh Narwal

(supra) and the judgment in Surendra Narain Singh (supra) is fully

applicable on which the Tribunal placed reliance

36. The aforesaid judgments in Sanjay Dhar (supra), C. Ovuraj

(supra) and

Dr. Pawan Kumar N. Mali (supra), upon which reliance has been

placed by the learned counsel for the respondents, also support their

contentions and the view taken by the Tribunal. 37. The submission of the petitioners’ counsel that the applicants cannot

be given the seniority from any date prior to their date of appointment in 2002,

as by that time they were not born in the cadre is misconceived, for the reasons

RNT, J & CGR, J

WP No. 4962 of 2014

28

and considerations made hereinabove. The contention to that effect was also

raised in Dendukuri Venkata Narasimha Raju (supra), where the

Coordinate Bench observed and held as under in para-47.

“47. We are of the view that it cannot be said that the applicants/respondents

1 to 11 were borne on the date when the appointment was given to them and

giving them the benefit at par with the appointees of 1996, notionally would

amount to giving them the seniority from the date they were not borne in the

cadre. It cannot be so said, for the reason is that, if they had been given

appointment as per their entitlement of being selected in the same selection of

DSC 1989 at par their counter parts, they would have borne in the cadre in the

year 1996. They were not given appointments along with other selectees in the

year 1996. They should not suffer for the fault of the State and its authorities in

not appointing them though were selected but not appointed and the persons

with less merit were given appointment. Consequently, we are of the further

view that by giving the notional seniority and the other benefits from 1996

at par with the other appointees of the same selection, the respondents

shall be treated as having borne in the cadre of the year 1996 itself

notionally. So, it is not the case that they are being given notional seniority

or notional benefits from a date prior to their birth in the cadre. But it is a

case of giving them parity and their right to which they are legally entitled

in view of their selection, but denial of appointment illegally in the year

1996 though selected in the same selection of DSC-1989.”

38. So far as the further contention of the petitioners’ counsel that the

implementation of the direction of the Tribunal would adversely affect the

unrepresented parties is concerned, the same is also misconceived. The reason

is that the Tribunal has taken care of that aspect and has directed the

petitioners to intimate the provisional seniority list to all the concerned and

receive the objections, if any, and then finalize the seniority list, which is in

RNT, J & CGR, J

WP No. 4962 of 2014

29

consonance with the principles of natural justice, as also the principles for

finalizing the seniority list.

39. Thus considered, we find no merit in the writ petition. The Order of

the Tribunal does not suffer from any illegality.

40. The Writ Petition is dismissed. The petitioners shall comply with the

Order of the Tribunal, if not implemented so far, expeditiously. No order as to

costs.

Pending miscellaneous petitions, if any, shall st and closed in

consequence.

_______________________

RAVI NATH TILHARI, J

________________________

CHALLA GUNARANJAN, J

Date: 24.06.2025

Dsr

Note:

LR copy to be marked

B/o

Dsr